Eggert v. Charles H. Heer Dry-Goods Co.

Sherwood, P. J. The plaintiff seeks specific performance of the following contract: “ Springfield, Mo., December 12, 1885. “ Charles H. Heer Dry-Goods Company of Springfield, Greene county, Missouri, agrees to sell to Carl Eggert, of Jasper county, Iowa, the following described tracts of land lying in Barry county, Missouri, viz.: Part of the northwest quarter of southwest quarter of section 23, township 24, range 26, thirty-seven acres, and the south half of southwest quarter, section 23, township 24, range 26, eighty acres ; total, one hundred and seventeen acres, on following terms and conditions : Said Carl Eggert has paid us five dollars ($5) to be considered as a bonus for the further carrying out of this contract, and hereby agrees to pay the said Dry-Goods Company the further sum of $195 within thirty days of this date and execute to said Dry-Goods Company within the thirty days aforesaid his three several promissory notes as follows: “ One note due one year from date, eight-per-cent. interest.....................$ 50 “ One note due two years from date, eight-per-cent interest..................... 100 “ One note due three years from date, eight-per-cent. interest..................... 100 “$250 [521] “ All of said notes to be secured by trust deed on lands herein described. When said Eggert shall have complied with his part of this agreement, we hereby bind ourselves, our heirs and assigns to make him a good warranty deed to the premises herein described. It is understood that if said Eggert fails to close the trade in thirty days and make payments as aforesaid, this agreement is to be null and void, and he forfeits all rights under this contract and the $5 paid us. £t Chas. II. Heer, President.” The petition in this cause accompanies this opinion, as also does the abstract of the testimony furnished by the plaintiff, which, not being controverted by the defendants,-who enter no appearance in this court, will be presumed correct. The joint answer of the defendants was a general denial. The testimony, as will be seen, fully sustained the allegation of the plaintiff’s petition, showing a valid contract entered into between the Heer Dry-Goods Company and the plaintiff; that contract not performed and that those who purchased the second time were purchasers with full notice of the first purchase. These facts gave the plaintiff an undoubted standing in a court of equity and entitled him to the relief he sought. And in such circumstances it is as much a matter of course for a court of equity to decree specific performance as it is for a court of law to give damages in an action for breach of the contract. Hall v. Warren, 9 Ves. 608; Waterman Spec. Perf., sec. 3. The first tract mentioned in the contract described as “part of,” etc., does not seem to be very accurately described (Brown v. Guice, 46 Miss. 299); but as no objection was taken on that score in the lower court, it will be presumed that the thirty-seven acres thus designated was well known by that description, and, if so, that was sufficient. We reverse the judgment and remand the cause with directions to the lower court to enter a decree for he plaintiff in accordance with this opinion. All concur.