Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1906-01-11
q filtII
NOTCrOSS. ].

Finding myself unable to concur in
the prevailing opinion. ! deem it prop
o. 20 make a brief statement Of my
vtev- rr 30 oo-n as i o0noars from
the transcript filed in this court
This is a suit for a specific. rerfor
nance of an alleged contract to con-
vev land
The contract was in the complaint
Cf plaintiff alleged tc 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 saii
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 of 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 speciti
cally describing it. alleging a contract
with defendants intestate to convey
the same: bat his evidence-the de-
PENDANT not having put in any other
than to cross examine plaintiffs wit
nesseS-ShOws that he had no contract
to convey land, but merely the Sand
on the premises described. | deem il
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
I nesses gives evidence of 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 h ilI' On certain
premises described in said evidence:
or contracting to sell such sand olt
| or sard hill.
| Under such statp 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
| buving. 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 betWeeH
plaintiff and defendants intestate tc
| sell to plaintiff the sand on certain
! piece of land described in pialntlT
| 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 D'eadings and evidence !!
the case I think the curt could no
have properly so adjudged. There
was no allegation in the complaint .
a denial on the part of the defendant
or anv one of them of this right c
plaintiff to the sand: or any ailegatio
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
: such contract: but it made no findln
4 of any breach of said sontract. $
far as anything appears in said findlH
i in concerned the defendants may hay
:, always permitted plaintiff to tai
e sand in accordance with the contra
y found to have been made with plal
I. tiff by defendants intestate. Unu'
u such circumstances the Court cou
It not have adiudged against the defen
ants for either the sand or .he cos