Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1906-01-17
| concur:
NOrcross. ].
Talbot, J.

Finding myself unable to concur in
the prevailing opinion. deem it prop
err to make a brief statement of my
view of the case as it appears from
the transcript filed in this court.
This is a suit for specific perfor-
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 said
complaint as claiming under said Glow.
The case was tried without jury;
and the trial court gave judgment
against plaintiff The plaintiff appeals
from said judgment and also from the
order Of the court denying his mo-
ton for a new trial. -z,.,,..
The question before us on the appeal
is: Does the evidence sustain the
Judgment and order? I think it does.
The plaintiff sued for land. specifi-
cally describing it, alleging a contra ct
with defendants intestate to convey
the same: but his evidence-the de-
PENDANT not having put in any other
than to cross examine plaintiffs wit
nesses-shows THAT he had nc contract
to convey land, but merely the sand
on the premises described. I deem it
unnecessary 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 gives evidence of a buying or
selling Of land or a contract for buy
ing or selling land All the evidence
is as to buying and selling the "sand
pit" or the "sand hiIl' on certain
premises described in said evidence:
or contracting to sell such sand 3ie
or sand hill.
Under such state of facts this court
would not be justified in disturbing
the finding of fact made by the Trial
Court that there was no contract for
buying, selling or conveying land; and
without such contract 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 interstate tc
| SeIl W pldtuilu lue Sdhu Ou a SCl "a
| piece of land described in PLANTERS
complaint; and on this finding appel
! liant claims that it was error in the
court not to give plaintiff judgment
for this sand and for plaintiffs cos
of suit.
| Under the pleadings and evidence j!
the case l think the curt could no
have properly so adjuGged. There
was no allegation in the complaint 0
a denial on the part of the defendant
or any one of them of this right G
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 finding {
, such contract; but it made no findin
J of any breach of said sontract. S
far as anything appears in said findi1
in concerned the defendants may hay
J, always permitted plaintiff to TAX
2 sand in accordance with the contra;
y found to have been made with plai
= tiff by defendants intestate. Undt
r such circumstances the Court cou
It not have adjudged against the defen
ants for either the Sand or me COS