The Mankato free press. [volume] (Mankato, Blue Earth County, Minn.) 1879-1924, 1893-03-10
MANKATo FREE PRESS.
FRIDAY. MARCH 10, 1893.
FOR THE DEFENDANT.
Judge Severance Decides the Eber
hart=Nelson $4,000 Damage
Suit.

LOUIS EDerudrU mas lOSG Ills O1O,Ooo
damage suit against q. n. Nelson, OF
Saltwater. He will ask for a new
trial and not getting it will appeal to
the Supreme Court.
In his decision, Judge Severance
finds as a matter Of fact:
That on or about the Bird day of Oc-
tober, 1892, and prior thereto, the de-
PENDANT was in possession of the real
estate described in the complaint, land
was then the owner and in possession
of quantity of grain and hay on or
near the said premises.
Except as herein found true, the
material allegations of the complaint
herein are found to be untrue.
AS conclusions of law, it is found:
That the plaintiff is not entitled to
the relief demanded in the complaint,
but that the defendant is entitled to
recover from the plaintiff his costs
and disbursements herein.
Let judgment be entered and rend-
cred accordingly.
The following
MEMORANDUM
accompanied the decision:
This action was brought to enforce
the specific performance of an alleged
contract to convey certain real estate,
or to recover damages resulting to
plaintiffs from non-performance there
jof.
The contract relied upon by plant
if consists of certain letters, which
! are fully set out in the complaint.
The letter containing the PROPOSE
tion to purchase said premises, writ
ten by plaintiff to defendant, bears
date September 21st, 1892. The al
legged acceptance of such proposal is
contained in letter annexed to the
complaint, purported to be written by
one III. p. Christensen to the plaintiff,
bearing date of Oct. 3rd, 1892.
1t is not proved by a fair prepon-
derence of the evidence that said last
described letter was ever written as
alleged by plaintiff; and if it was,
it appears by the evidence that
after the making of the propo-
sition to purchase, contained in
the letter of plaintiff to defend
ant, bearing date Sept. 21st, 1892,
plaintiff, by certain letters written to
the defendant, one bearing daJe Sept
24th, 1892 the other Sept. 9th, 1892,
materially changed and modified his
offer of Sept. 2lst, 1892, and in the
letter of Sept. 81, 1892, expressly stat
ed that he then consolidated all for
mer propositions in the one contained
i'll that letter, which proposition was
l materially different from the one sued
upon; hence it appears that plaintiffs
proposition, upon which he relies, was
withdrawn or materially modified be-
fore the alleged acceptance thereof
relied upon by plaintiff.
There is not sufficient evidence that
III. p. Christensen had authority tC
make contract for the sale of the
premises in controversy, binding upon
the defendant.
The letter of defendant to plaintiff
bearing date to Oct 9Th, 1892, annex
ed to the complaint, does not clearly
appear to refer to the matters involv
ed in this suit.
1t may be added til at plaintiff failed
to prove any tender of performance
upon his part, so as to entitle him tt
specific performance of the alleged
contract, or to recover damages fol
the breach thereof. and failed tt
prove any substantial damages fol
such alleged breach of such CONTRACT
cNnVpy