Veith v. McMurtry

• Decision Date: 10 April 1889
• Citation: 26 Neb. 341,42 N.W. 6
• Parties: VEITH v. MCMURTRY ET AL.
• Court: Nebraska Supreme Court

26 Neb. 341

42 N.W. 6

VEITH

v.MCMURTRY ET AL.

Supreme Court of Nebraska.

April 10, 1889.

Syllabus by the Court.

1. One P., a resident of New York, being the owner of certain lots in the city of Lincoln, after considerable correspondence with one V., of the latter place, wrote to him, saying: “If you want the lots, and take them before February 15th, you can have them for $3,500 cash to me.” On the night of February 8 or morning of February 9, 1887, P. telegraphed to V.: “Shall have to withdraw my refusal of to-day, and let it expire tonight instead of 15th.” This was received by V. about 9 A. M. of the 9th and at 11 A. M. of said day he sent the following dispatch to P.: “Received your message; accepted your last offer to make good my refusal. I will pay the $3,500 cash. Send you hereby $500, and pay balance on delivery of warranty deed.” Held, (1) that, under the terms of the telegram from P., V. had until the night of the 9th to accept the proposition; (2) that the acceptance of the offer of $3,500 cash was unconditional, and that the proposition to pay $500 at once, before the delivery of the deed, was in the nature of a forfeit to show good faith; (3) that as no place was designated in the contract for the payment of the money, it was for the vendor to determine whether the payment should be at his place of residence or in the city where the lots were situated; (4) where the proposed vendor makes no objection to the terms of payment, a third party cannot do so.

2. A party who purchases real estate with knowledge that another has a contract of purchase for the same is not a bona fide purchaser, and if he acquires such knowledge at any time before the payment of the consideration he will not be protected as a purchaser in good faith.¹

3. If A. enters into a contract to sell land to B., and, without complying with the contract, sells the land to C., B. may compel the purchaser to convey to him, provided he is chargeable with notice at the time of his purchase of B.'s equitable title under the agreement.

4. A purchaser with notice is liable to the same equity, stands in his place, and is bound to do that which the person he represents would be bound to do by the decree. He takes the estate subject to the charge, and stands in the place of his vendor.

Appeal from district court, Lancaster county; CHAPMAN, Judge.Billingsley & Woodward and J. B. Archibald, for appellant.

J. R. Webster, for respondents.

MAXWELL, J.

This is an action to enforce the specific performance of a contract for the sale of certain real estate in the city of Lincoln. It is brought against the defendants, who, it is claimed, purchased the property with notice of the plaintiff's rights. On the trial of the cause in the court below, a decree was rendered in favor of the defendants. The plaintiff appeals. The questions at issue are, to a great extent, questions of fact, and to be understood must be set out at length.

In January, 1887, Dr. James L. Perry, of New York city, being the owner of lots 5, 6, 7, and 8, in block 116, in the city of Lincoln, wrote to the plaintiff the following letter: “Mr. Henry Veith--Dear Sir: Your letter has been laid aside to answer, but I have been having rheumatism, and have delayed. Will state the facts with regard to the lots. I have an offer for two lots much larger than your offer, and the prospect of selling the four lots very shortly for $4,000, part cash and part in time. I expect the sale will be made within six weeks; perhaps within four weeks. The only way I can favor you is by not closing with any offer for two weeks. If you can make a sale of two of the lots, it will bring your other two to a reasonable and moderate figure. If you want the lots, and take them before February 15th, you can have them for $3,500 cash to me. If it will help you any, you may have them for $4,000,--$2,000 down, and the rest in three years, at 6 per cent. I make you this offer simply to make it easy for you in case you really want them. They won't be sold for any less to any party. Would as lief have the $3,500 cash, because I can invest it here to suit me. Your letters have been fair and business-like, and I would sell to you as soon as to anybody in the world, and would give you the preference if I could. Yours, very truly, JAS. L. PERRY, 79 West 47 St. Jan. 31, 1887.” This letter seems to have been the result of considerable correspondence between the parties in regard to the sale of the lots in controversy. The plaintiff testifies that upon the receipt of the letter he made provision to obtain the money. About the time the above letter was received by the plaintiff, Mr. McMurtry seems to have written to him in regard to the lots in question, and received an answer as follows: “Feb. 7, 1887. Mr. J. H. McMurtry--Dear Sir: Your letter received on my return home, and answered by telegraph this morning. Have received several letters with offers since you were here. One party I have been in correspondence with before, and I finally gave him the refusal till February 15th, and I do not wish to sell them for less than $3,500 cash, or $4,000 on time, and in fact have said I would not, as I believe they will bring it. Have been offered $3,200 cash, and $3,500 on time; but I did not consider it at all. Would prefer $3,500 cash to $4,000 time, because I can invest it here readily. * * * Yours, truly, J. L. PERRY.” On the 9th of February, 1887, the plaintiff sent a telegram to Dr. Perry, as follows: “Postal Telegraph Cable Co. 1.40. Received at 714 Seventh Ave., 2-9.35 pd. Dated Lincoln, Neb. 9. To Mr. J. L. Perry, 79 W. 47 St.: Received your message. Accepted your last offer to make good my refusal. I will pay the thirty-five hundred dollars cash. Send you hereby five hundred dollars, and pay balance on delivery of warranty deed. HENRY VEITH.”

The plaintiff testifies in regard to this telegram as follows: “ Question. That was on February 9th, you say? Answer. On February 9th. Q. What did you do in the way of sending money? A. I paid him in the telegraph office. Forwarded five hundred dollars by telegraph to him,--to Mr. Perry,--and paid for the expense, so it would be sure of their sending and delivering it. Q. To his office in New York? A. Yes, sir. Q. Did you see the defendant James H. McMurtry that day? A. I met him at the telegraph office. Q. State what passed between you and Mr. McMurtry in the telegraph office; state whether or not you saw him there. A. I had written out the telegram, and was there about 11 o'clock that day. Q. Well, state now what occurred between you and Mr. McMurtry. A. Why, I had written out my message to Mr. Perry. Q. What telegraph office was it? A. In the Pacific, under the First National Bank. Q. In this city? A. In Lincoln. Mr. McMurtry came in. I am not aware whether he noticed me, but I noticed him. I stood standing at the side of the counter; was just about reading over my message. He asked how much would thirty words cost to New York. I kind of looked up, and watched the proceedings a little, without giving any notice that I paid any notice to it. And after Mr. McMurtry was told, why, he began to write. I saw he was writing a message addressed to James L. Perry. I could see that part of it; the same address I was writing to. I saw something was up. I then approached Mr. McMurtry, and said that ‘You are telegraphing about these lots; that it was no use; I had a refusal, and had accepted.’ When I said this, Mr. McMurtry said, ‘Is that so?’ and seemed surprised; and said he had a message from James L. Perry, from New York, and the message was concerning me and the lots, and he would like to show that message to me. I said, if it concerns me and the lots, I am willing to see it, and will go down with you. So we went down to Mr. McMurtry's office, and he produced a message from J. L. Perry. Q. Who asked you to go to Mr. McMurtry's office? A. Mr. McMurtry asked me to go to the office. He said he had a message concerning me. After we went down to the office he produced the message, which, apparently, was from James L. Perry; but he did not show me the whole of it, but held it in his hand, and only offered one part of it. The message was dated and addressed to him, and he held his hands over part of it, and we got then into conversation. He said: ‘By this message I have a right to sell these lots, and will go through.’ He told me he had about sold the lots to Mr. Howard, and then, as we were in the office, and passing a little conversation concerning that, I said: ‘So far as I saw the message, perhaps you are entitled to presume so, provided you see me first, because I had the refusal, and, if I don't want them, why it looks to me as though you were entitled to sell to some other party, as far as I can see the correspondence.’ Q. What was said about the commission? A. I said then, ‘Rather than have any difficulty, I would rather allow you a commission, and not get into collision in this matter;’ and he said then he didn't care. It didn't make any difference to him whether his man got the lots or I would get the lots. I would get damages,--that is what he said. Mr. Howard came in. I knew his name, but I had no acquaintance with him at that time. I had met him. Q. Was this the defendant Howard in this case? A. Yes, sir; the defendant Howard. He stepped into the room, and asked what he wanted with him, and Mr. McMurtry said, ‘Nothing now;’ but told him to come in again. Before Mr. Howard left the room I said to Mr. McMurtry: ‘Is this the man you have been talking of selling the lots to?’ Mr. McMurtry said: ‘No; it is not the Howard. It is another Howard from that.’ I asked Mr. McMurtry to step into the bank. I had made provision to have the loan in the amount to pay the balance, and that money was to be paid for the property when the deed was delivered. This ended about this conversation. I had a letter that afternoon. I went and showed him the letter. I thought I perhaps could hinder...