Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1911-09-22
SUPREME COURT

WI W. UUU1 OOONU
NEUTRALITY-SUSPICIOUS.
The suit of w. E. Beddow vs.. Free
c. Flage, just decided by the suprem
court, in which the decision of Judg
Winchester, as special judge of tn
LaMoure district court, is sustained
grew out of an option contract. II
1905 the plaintiff took an option on {
tract of land, paying 81 therefor
That the defendant refused to NEE
the provisions of the contract an,
suit was brought for damages. The
court below held with the plaintiff
and is sustained by the supreme court
the opinion following:
Under the code several causes Of
action, whether such as have been
heretofore denominated legal or eQuit
able, or both, if they all arise out OF
the same transaction, or transactions
connected with the same subject III
action, may be united. Held, that
plaintiff may, in the same action, seek
a decree of specific performance for
the conveyance of land and damages
for failure to convey in accordance
with written contract.
Plaintiff took an option on contract
for the purchase of land, running to
W. E.. Beddow, cashier of the c. Bank
of Waukol, Iowa. He complied with
it's terms and, on the refusal of the
vendor to convey, brought suit in his
own name. Held, that among the diff
ferent rules applicable to contracts so
made, that most favorable to the ap-
pellant is that, prima 1acie, the words,
cashier, etc" are descriptive of the
person do not constitute a represen-
tation of the capacity in which the
plaintiff acted in making the contract;
and that demurrer to a complaint
on such contract, upon the ground
that the action is not brought in the
name of the bank, was properly over
ruled.
An allegation in the complaint of
vendee in an action for specific per.
Torrance that he has been ready, will.
ing and able at all times to comply
with his part of a contract for the pur
chase of land and has rendered pay
ment but that the vendor has refused
to convey, is sufficient on demurrer.
an action for speclnc performance
may be maintained upon a contract
for the conveyance of land signed on.
ly by the vendor.
An option contract for the purchase
and sale of land, certain as to the
minimum amount of cash to be paid,
and giving an option to pay all cash,
becomes definite and certain upon
the Vendee accepting the option in
the contract as to security in case
part cash only is paid are rendered
immaterial although set out in the
complaint.
An option contract accepted in &C.
cordance with it's terms is mutual and
can be enforced against the vendee if
he fails to perform, and hence com.
plant setting out these facts is not
open to demurrer, on the ground of
want to mutually in the contract.
The vendee In proper case of spe.
office performance may recover dam.
ages against the vendor for withhold.
ing possession, and delay in convey.
ing, in an action in which specific
performance is decreed.
Syllabus by the court.
Appeal from the district court of
LaMoure county; Winchester, Judge.
Opinion by Spalding, J. Hon. A. G.
Eurr, Judge of the 9Th Judicial Dis
trict, sat by request.
In the case of James R. Stewart VS..
Hampton Lyness, a land transaction
in Wells county, the appeal was dis.
missed by the supreme court, on the
grounds set out below.
Q) Sec. 1908, R. c. 1905, provides
that to render an appeal from the dis
trict court to the supreme court ef-
fectNal for ANY purpose an undertake
ing must be executed on the part of
the appellant by at least two sureties
to the effect that the appellant will
pay all costs and damages which may
be awarded against him on the ap.
peal, not exceeding $25O.OO. Sec.
1921 provides that an undertaking up
on appeal shall be of no effect unless
accompanied by the affidavit of the
sureties in which each surety shall
state that he is worth the sum men,
toned in such affidavit over and above
all his debts and liabilities, in pro-
perry within this state, not by law
exempt from execution, and the sum
so sworn to by such sureties shall
in the aggregate, be double the sum
specified in such undertaking, Held,
that an appeal to this court in which
the undertaking referred to in said
sections is supported by an affidavit
which fails to state that the property
of the sureties is within this state
in the amount specified is inetfectual
for any purpose; and that such under
taking must be stricken out on motion
and the appeal dismissed. :
(2) No intimation is made as to
any rights of the appellant under the
provisions of section 1924, R. c. 1905,
for the reason that he stood upon the
and affidavits furnished.
Appeal from an order of the district
court of Wells county, Burke, Judge.
Appeal dismissed.
Opinion by Spalding.
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