OPINION
MAXWELL
CH. J.
This is
an action for specific performance originally brought by the
plaintiffs against Harry C. Cranz, John S
Wood, and C. E. Perkins to compel the specific execution of a
contract for the sale to said plaintiffs of lots 6 and 7 in
block 3 in that part of lot 5 in Capitol addition to Omaha
known as Perkins' subdivision. The petition was filed
June 18th, 1883. In August following Specht, the appellant,
obtained leave of court to intervene, and filed an answer in
the nature of a cross-petition, in which he claimed to have
purchased said lots from Cranz on the 28th of February, 1882.
The issues were made up, when on the 8th day of November,
1884, a stipulation was filed in said cause as follows:
"It
is stipulated that the above cause be and the same is hereby
dismissed, each party to pay one-half of the costs."
This
was signed by the attorneys for the respective parties, and
on the 8th of November following in pursuance of said
stipulation the action was dismissed. On the 11th of the same
month Specht filed a motion to reinstate the case on his own
cross-petition, and the motion was sustained. In May, 1885,
the cause came on for hearing on said cross-petition, and the
evidence and the court found against the appellant and
dismissed the cross-petition.
The
appellant bases his right to recover upon the following
communications:
"Exhibit
one."
"OMAHA,
NEB., Jan. 11, 1882.
"H.
C. Cranz, 314 N. 2d St., St. Louis:
DEAR
SIR--Do you want to sell your lots in Perkins'
sub-division of lot five in Capitol addition to the city of
Omaha? I think I can get you a fair price, say $ 1,500.00. My
commission in case of sale would be the usual rate, five per
cent on first thousand and two and one-half on balance. An
early answer will oblige.
"Yours
truly,
"JOHN
L. MCCAGUE.
"I
sold E. P. Peck's lot some weeks ago."
He received in answer thereto the following:
"Exhibit
two."
"ST.
LOUIS, Jan. 16, 1882.
"J.
L. McCague, Omaha, Neb.:
DEAR
SIR--Yours of the 11th instant at hand. If you have an offer
on my lot and can sell it so as to net me $ 1,500 you may do
so, but I don't want a sign stuck up on the lot. If I
can't get the amount I will hold it. The sale must be
also a cash one.
"Yours
truly.
"H.
B. CRANZ."
The
testimony shows that John S. Wood, on the 30th of January,
1882, wrote to Cranz in relation to selling the lots in
question, and received the following answer:
"Exhibit
A."
"Office
of the Diamond Match Co., "314 N. 2d St. St. Louis, Feb.
6, 1882.
"Capt.
Jno. S. Wood, Omaha, Neb.:
"DEAR
SIR--Yours of the 30th of Jan. at hand. You may sell for $
1,500 on one year's time, note bearing 10 per cent int.,
provided you will stand as security, otherwise, I shall want
at least $ 500 in cash, a mortgage on lot for balance, and
note bearing 10 per cent int. In either case, purchaser to
pay all expenses of recording
deed and mortgage as well as taxes for 1882.
"Mr.
McCague says he can get $ 1,500, so please advise me, as soon
as possible, so I will know what to do.
"Yours
respectfully,
"H.
C. CRANZ.
"Do
not offer for sale after March 1st. If not sold then, I will
hold it myself."
To this
letter Wood replied as follows:
"OMAHA,
Feb. 13th, 1882.
"H.
C. Cranz, Esq., St. Louis, Mo.:
"DEAR
SIR--My friend has concluded to take the lots, so you can
deed the lots to me, as I will then be safe. You can send the deed to Captain Broach or to J. H. Millard,
Omaha National Bank, with instructions, and I will send you a
draft for $ 1,500. The purchaser is a Mr. Whitehorn, who
belongs to the Glee Club. If you should require the amount in
one or more drafts, or payable to different orders, please
advise me.
"Respectfully,
your ob't servant,
"JOHN
WOOD."
In
answer to the above letter Cranz sent the following:
"SAINT
LOUIS, Feb'y 16th, 1882.
"Captain
John S. Wood, Omaha, Neb.:
"DEAR
SIR--Yours at hand. I think the best way to close the sale of
the property will be as follows: Give me Mr. Whitehorn's
initials, and I will then transfer or assign my contract over
to him, and he can then retain enough to pay the balance due
on same, and remit me the balance, or if he prefers, he can
avail himself of the unexpired term it yet has to run. I will
send the contract, properly assigned, to Capt. Broach, and
Mr. Whitehorn can then settle with him.
"I
hope you have realized something on the sale for yourself.
"Yours
respectfully,
"H.
C. CRANZ."
The
record also contains the following receipt:
"Exhibit
B."
"OMAHA,
Neb. Feb. 9th, 1882.
"Received
of E. Whitehorn and Fannie Whitehorn his wife, the sum of ($
1,500) fifteen hundred dollars, for the payment of lots (6)
six and seven (7) in block (3) three Perkins'
sub-division of lot 5 in Capitol Addition to the city of
Omaha. H. C. Cranz, by Jno. S. Wood."
The
testimony shows that Cranz held the lots in question under a
contract of purchase from C. E. Perkins and that a
considerable amount was still due on the purchase price of said lots, that W. J. Broatch was his agent at
Omaha, and that Broatch in 1883 paid $ 450, the balance due
on said lots. On the 20th of February, 1882, Cranz assigned
his contract as follows:
"I,
H. C. Cranz, the within named purchaser, for and in
consideration of dollars, do hereby assign and transfer all
my right, title, interest, and claim in and to the rea estate
within described unto John S. Wood, his heirs and assigns
forever. And I do hereby authorize W. J. Broatch to receive
from him the said all unpaid balances due to said in part
consideration for said land, and upon the final payment of
all the purchase money, and a full compliance with all the
requirements contained in the within agreement, to execute,
or cause to be executed to him the said his heirs and
assigns, a deed for said lands, instead of to me. Given under
my hand and seal, this 20th day of February, A.D. 1882.
"H.
C. CRANZ. [SEAL.]
"State
of Missouri, "City of St. Louis. SS.
"Before
me, a notary public in and for said city, this day personally
came H. C. Cranz, who is known to me to be the identical
person who is described in the within agreement, and who
executed the foregoing assignment, and acknowledged that he
signed, sealed, and delivered the same as his free and
voluntary act and deed, for the use and purposes set forth.
Given under my hand, this 20th day of February, A.D. 1882.
[NOTARIAL
SEAL.] "C. D. GREENE,
"Notary
Public."
Of this
sale Specht was advised at least as early as the 20th of
February, 1882. On the 28th of that month McCague gave Specht
the following receipt:
"$
100.00. Omaha, February 28th, 1882. Received of Christian
Specht, one hundred ($ 100.00) dollars as earnest of sale of lots 6 and 7, in block 3, in...
