Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1906-01-18
| concur.
N0rcrosS, J.
Talbot, ]

Finding myself unable to concur in
/ the prevailing opinion. deem it prop
| er TO make brief statement of my
view of the case as It appears from
the transcript flied in this court.
This is a suit for a specific perfo,-
=. nance of an alleged contract to con-
vev land.
The contract was in the complaint
Of plaintiff, alleged to have been made
by plaintiff with one B. G. Glow in the
lifetime of said Glow; and the suit
is against n H West. as admins
traitor Of the estate of said Glow,
and also against others named in sail
complaint as claiming under said Glow.
The case was tried without a jury:
and the trial court gave judgment
against plaintiff. The plaintiff appeals
from said judgment and also from the
order CT the court denying his mo-
ton for a new trial.
The question before us on the appeal
is: Does the evidence sustain the
judgment and order? | think it does.
The plaintiff sued for land, specll-
cally describing it. alleging a contract
With defendants interstate to convey
the same: but his evldenCe-the de-
PENDANT not having pat in any other
than to cross CANINE plaintiffs WIT
nesses-shows that he had no contract
TO convey LARD, buJ merely the sand
On the premises described. | deem il
unneC essarv to quote or infinitely
state the evidence here. 1t is deemed
sufficient that the general statement
be made that no one Of plaintiffs Wit
nesses 2iyes evidence of a buying u
selling Of land or a contract fer buy
ing or selling land All the evidence
IS as to buying and selling the "sand
pit" or the "sand f1ili.' or certain
premises described in said evidence;
or contracting TO sell such sand 81
Or sand hill.
Under such state nf facts this court
would not be justified in disturbing
the finding Of fact made by the Trial
Court that there was 10 contract Tor
huving. selling or conveying LAND; and
without such contrac ct there was moth
| ing Of which The Court could decree
specific performance.
The court. however, did find as a
/ fact that there was a contract between
| plaintiff and defendants intestate 10
sell to plaintiff the sand O. certain
| piece of land described liz plaintisf' 8
| complaint: and on this finding appel,
| liant claims that it was error in The
cOurt not 20 give nlaintifS Judgment
for this sand and for plaintiffs cost
of suit.
Under the pleadings and evidence Il
the case | think the curt could not
have properly SO adjudged There
was no allegation in the complaint q
Ia denial on the part Of the defendant
or anv one of them of this right Q
plaintiff to the sand; or any allegatio,
of refusal by the defendants or an
one of them to permit plaintiff <
take the sand in accordance with tn
: contract as stated in said finding. /
is true the court made a finding 9
such contract: but it made no findin
of any breach of said sontract. 5
far as anything appears in said findin
in concerned the defendants may hav
. always permitted plaintiff to tax
, sand in accordance with the contra,'
Y found to have been made with plaiF
. tiff by defendants intes,ate. Unue
= such circumstances the Court cout
t not have adjudged against the defent
i ants for either the, sand or .ne cost