Coleridge Creamery Co. v. Jenkins

92 N.W. 123, 66 Neb. 129, 1902 Neb. LEXIS 392

Opinion

Pound, C.

This is a suit for specific performance, in which the defendant appeals from a decree granting the relief prayed. So far as complaint is made with reference to the pleadings, it is enough to say that after judgment the petition is to be construed liberally, and that the interlocutory orders and rulings upon motions directed to the pleadings are not reviewable by appeal. National Life Ins. Co. v. Martin, 57 Nebr., 350.

Coming.to the merits of the cause, objection is made because the plaintiff, which is a corporation, has neither alleged nor proved that the property was necessary for its legitimate business, so as $o come within the purview of section 124, chapter 16, Compiled Statutes.

Footnotes

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* But it is alleged that the corporation, in reliance upon the contract, erected permanent improvements on the land to the amount of some $3,000, for the purposes of its corporate business. The purchase price was only $60, and as the improvements are alleged to have been made with defendant’s knowledge, and prpvecl to have been made with his participation and active assistance as one of the company, it is manifest that to permit Mm to question the right of the corporation to take and hold the property at this time would result in a gross fraud. The state is the proper party to inquire into this matter, and if the corporation holds too much land, proceedings in quo war-ranto will remedy the evil. Watts v. Gantt, 42 Nebr., 869; Missouri Valley Land Co. v. Bushnell, 11 Nebr., 192.

Reliance is also had upon the. statute of frauds, and it is contended that since the defendant did not have title to' or possession of the property at the time the contract was made and the improvements erected, there has been no part performance sufficient to take the case out of the • statute.. But defendant expected to procure the title he contracted to convey, and did afterwards procure it. He participated actively in the transactions whereby the company, in reliance on the contract, -took possession and made the improvements. He can not avail himself of the statute under such circumstances. The acts of the company are so palpably those of an owner, the dispro- \ portion between the value of the land and the amount of the improvements is so great, that no other construction than performance of a contract for purchase can be indulged. Poland v. O’Connor, 1 Nebr., 50; Baker v. Wiswell, 17 Nebr., 52; Haines v. Spanogle, 17 Nebr., 637; Ford v. Steele, 31 Nebr., 521. Tbe vendor having after-wards acquired the land which he contracted to convey, specific performance may be decreed. Filley v. Duncan, 1 Nebr., 134, 137, 93 Am. Dec., 337.

Finally, it is argued that the contract is too indefinite in its terms to admit of specific performance, in that the time of performance is not fixed. The obvious answer is that in the absence of express stipulations the vendor would have a reasonable time in which to acquire title and make the conveyance, and the conveyance and payment of the price would be concurrent. Defendant having acquired title before suit was brought, no question as to time or possibility of- performance is involved. All that is necessary is that the contract be such that an efficient decree for its specific performance may be made, which may be enforced when rendered. 3 .Pomeroy, Equity Jurisprudence, sec. 1405.

The petition states a cause of action, and there is ample evidence to sustain the findings. We recommend that the decree be affirmed.

Barnes and Oldham, CC., concur.

By the Court: For the reasons set forth in the foregoing opinion, the judgment of the district court is

Affirmed.

Cobbey’s Annotated Statutes, see. 4117.