The Fargo forum and daily republican. [volume] (Fargo, N.D.) 1894-1957, 1913-02-07
Decisions of the Supreme Court

tracto f purchase and sale in which an
action for specific performance will lie.
Such contract Is enforcfble in equity as
a written contract embodyinE the same
terms and subscribed by the seller and
purchaser would be enforced,
8. Upon acceptance in accordance
with the terms of an option to purhase
real estate, where the land covered
thereby has been, pending acceptance
and during the period stipulated with
in which acceptance might be made,
transferred to a third party with full
notice Of such option outstanding and
unaccepted. the same may be accepted
by notice Of acceptance served upon
the optionor, the owner, giving the OPP
ton. and thereupon the rights of the
acceptor, o~ptionee, relate back to and
attach as of the date Of the option and
render the intervening rights acquired
with notice subject to all rights of the
option purchaser. E&s ~
8. Such rights of the optionee con-
stitute an interest in lands enforcible
In equity though the opttonor has
transferred title to a third person, who
accepted title with notice of the option.
z. The performance here offered as
plead held to be a substantial compli-
ance with the contract, although the
amount OF an outstanding mortgage
lien OF record upon the premises was
deducted from the amount rendered In
full for the stipulated purchase pricei
and the fact that the deposit Of such
amount rendered was made subject TO
the order OF the original owner and op-
tionor, with notice In writing thereof
served upon both optionor and defend
ant purchaser with notice, does not
defeat the right Of plaintiffs to SPECIFIC
performance.
(Syllabus by the court.)
From an order of the district court
Of Mclean county, Winchester, J.
~overruling a demurrer to the com
plant defendant appeals.
Affirmed. Opinion by Goss. J.
McCulloch & Nelson of Washburn.
attorneys for plaintiffs and respond
| ents. ~. ... ~, .,.. TO-.
Hyland & Nuessle of washburn. and
Purcell nj Dfvet of Wahpeton. attor-
neys for defendant and appellant.
S. N. Putnam, appellant, W. A. b.
Prouty, respondent.
/. PLAINTIFF and defendant entered
INTO a written contract whereby the
former turned owe to the latter Ger
tain farming lands, stock and machin-
cry In Eddy county under an arrange
ment by which defendant was to farm
the land and feed and care for the
stock at his WI expense for d period
Of three years for a certain portion o1
the crops and Of the stock and Increase
thereof. Plaintiff also therein aareed
TO sell defendant v horses, two colts
and certain farm machinery for the
sum OF $500, one-third to be payable
each fall thereafter, but the title "a
such property was reserved In plaintiff
as security for the payment Of suct
purchase price, as well az security for
defendants faithful performance az al
TOT the conditions of such contract.
In April, 1907, plaintiff commencet
this action in claim and daliyarv ~
~recover the possession OF all the uer.
sonai property which he thus agreed Il
sell to defendant, and also certain 9TH.
er stock, grain and hay, basin1 his
fright to the possession thereof unor
defendants alleged failure to fulfill tn,
terms of the contract, either to proper.
lily feed and care for said stock. or Il
pay for the horses, colts and machiner,
as he agreed to do. AT the trial IA.
fendant was permitted, over pIalntiff',
objection, to show a parol sfiuuIafior
by plaintiff, 1t the time the write
contract was made that he would f,Jr.
nish certain buildings for ho.gins
such stock, and d breach thereon.
Held, that such proof was competent
2. The stipulation in the wr1ttaY
contract that defendant shall sfaat
and care for said stock at his own az
pense,p construed and held. undeT IN,
circumstances, o intended to cove,
the subject OF providing buildinsn "a,
housing such stock and that the moo
OF the paroi stipulation on pIaanfifr,
part to furnish buildings for such our,
. @ EINss.I III aG