Vindquest v. Perky

• Court: Supreme Court of Nebraska
• Writing for the Court: COBB, CH. J.
• Citation: 20 N.W. 301,16 Neb. 284
• Parties: H. H. VINDQUEST, PLAINTIFF IN ERROR, v. CHARLES PERKY, DEFENDANT IN ERROR
• Decision Date: 20 August 1884

20 N.W. 301

16 Neb. 284

H. H. VINDQUEST, PLAINTIFF IN ERROR,
v.
CHARLES PERKY, DEFENDANT IN ERROR

Supreme Court of Nebraska

August 20, 1884

ERROR to the district court of Saunders county. Tried below before GEORGE W. POST, J.

AFFIRMED.

J. C. Cowin (Mason & Whedon with him), for plaintiff in error.

1. The petition does not show that the court had jurisdiction of the subject matter.

2. There is no memoranda in writing stated in the petition showing a complete and completed contract. The memoranda must contain in writing the substantial terms of the contract expressed in such certainty that they may be understood without resorting to parol evidence; and this must be shown by the petition. Waterman on Specific Performance of Contracts, § 234. This petition does not show any writing from Perky to Vindquest, as he does not set forth a word of what he wrote, and the court can not say what that letter contained. The petition does not show that Vindquest wrote the letter charged to him, does not allege he signed it, does not allege that he ever sent it, and does not allege that Perky ever received it. Waterman, § 240. Gartrell v. Stafford, 12 Nebraska, 445. The memoranda must clearly indicate the property, and nothing must remain to be done in which the concurrence of the parties is necessary to ascertain the location or quantity of land. Waterman, § 236. Force v. Dutcher, 18 N. J. Equity, 401. Whelan v. Sullivan, 102 Massachusetts, 204. Ferguson v. Staver, 33 Pa. 411. Hurly v. Brown, 28 Massachusetts, 545. See also Morgan v. Bergen, 3 Neb. 209.

W. H. Munger, for defendant in error.

All the elements necessary to make a valid contract are stated in the petition. Waterman, §§ 331 and 332. It is sufficient to aver that there was a written agreement stating the substance without setting forth a copy, and without alleging that it was signed; the signing will be implied. Waterman, § 292. Brown on Statute of Frauds (3d ed.), § 505.

The petition states the substance of a valid contract, viz.: That Vindquest held contracts to certain land, describing it; that Perky wrote him (Vindquest) asking what he would sell his interest in said land for. Vindquest answered, stating he would take $ 2,350. Perky answered, accepting the offer--placing his letter, properly addressed, in the post-office. This completed the contract. Benjamin on Sales, (4th Ed.), § 44. No time having been fixed when payment was to be made or conveyance delivered; no provision that either should be done first, the covenants were mutual and dependent; one is not bound to pay without receiving his conveyance. Waterman, § 444. Time not having been made the essence of the contract, Perky was entitled to his deed upon making the tender as stated in the petition.

COBB, CH. J. MAXWELL, J., concurs. REESE, J., did not sit.

OPINION [20 N.W. 302]

[16 Neb. 285] COBB, CH. J.

This action was brought in the court below to enforce the specific performance of a contract for the conveyance of real estate. The defendant demurred generally to the [16 Neb. 286] plaintiff's petition. The demurrer it seems was filed on the 30th day of May, 1882. The journal entry shows that the cause was brought on to a hearing on the 27th day of October of the same year; that the demurrer was overruled, and the defendant called and defaulted for want of further answer; whereupon the court proceeded to hear proofs in said cause on the part of said plaintiff, ex parte, and rendered judgment for the plaintiff.

It appears also, that afterwards, on the 16th day of April, 1883, the defendant filed his motion to set aside and vacate the said judgment and grant a new trial in said cause, and let the said defendant in to defend the same, for irregularity and improper conduct in the plaintiff in obtaining said judgment. The said motion, after argument, was overruled, and the defendant brings the cause to this court on error.

There are attached to the record copies of affidavits in support and in resistance of said motion. But there is no bill of exceptions; hence the affidavits not having been made a part of the record cannot be considered here.

The remaining point, and that upon which plaintiff in error relies, is, that the petition fails to state facts sufficient to constitute a cause of action.

Upon the first...