Walker v. Burtless , 82 Neb. 211 ( 1908 )

Boot, O.

Plaintiff alleges that he entered into a written contract with defendant for the purchase of land and paid her $200 thereon. A copy of the contract is incorporated into the petition. It provides: “It is understood between the parties hereto that should the said party of the second part fail to make the payment of $500 and execute said mortgage for $500 on or before the 10th day of March, 1906, the $200 cash payment herein made is to be declared forfeited to the said party of the first part.” Plaintiff alleges that he tendered the money, note and mortgage to defendant, that she refused to perform, but, on the contrary, caused deeds to be recorded which clouded the title to said land; that he has been damaged in the premises and is without adequate remedy at law; that he is willing to perform upon defendant furnishing him a good title to said land, and offers so to do. Defendant admitted executing the contract and the receipt of the $200, denied that plaintiff had offered to perform the contract, but alleged that she had duly tendered performance, and that plaintiff refused to pay the money or to execute the notes and mortgage; “thereby said plaintiff has forfeited said $200 cash payment.” She asked judgment that she be entitled to the $200 and that her title to the land be quieted. The court found generally 'for defendant, and plaintiff appeals.

1. Defendant lias moved to quash plaintiff’s bill of exceptions, and said motion was submitted with the argument on the merits. The decree was rendered February 4, 1907, and the draft of the proposed bill was duly submitted to defendant’s attorney, and by him returned February 27, without suggestions of amendment. March 4 plaintiff’s attorney sent the draft of the bill to the clerk of the district court in McCook, the county seat where the case was tried, with a request that the clerk secure the trial judge’s signature thereto and then to file it. The document was not settled or signed by the judge, but was filed by the clerk in his office and certified to by him as a record in the case, and in that condition filed in this court on the 16th of May, 1907. In September, 1907, defendant’s counsel moved to quash the bill and- strike it from the files. Upon a showing of the facts by plaintiff’s counsel, and without any proof to this court that the February, 1907, of the district court for Red Willow county had adjourned without day, we permitted the document to be withdrawn from our files. November 26, 1907, Judge Orr settled and signed the bill, and immediately thereafter defendant’s counsel moved a diminution of the record to show the date that said term did adjourn sine die. It now appears that said term so adjourned February 16, 1907. The motion must be sustained. The bill was not allowed by the trial judge for more than nine months subsequent to the adjournment of the term at which the decree was rendered, and his acts in that regard are null and void. Stock v. Luebben, 72 Neb. 254.

2. In the motion for a new trial and in the assignments of error it is claimed that the pleadings do not support the decree, and we are' of opinion that, to a degree, the contention is sound. It is admitted that defendant still retains the $200. The contract is admitted, and time is not of the essence thereof. Defendant' does not plead that she has ever declared the money forfeit. By the terms of the agreement a forfeiture is to be declared under certain conditions. The forfeiture clause must be construed strictly against defendant, and if she did not declare a forfeiture she was not, and is not, entitled to retain said money, nor ought the court to have so decreed. We cannot assume, in the absence of a bill of exceptions, that the parties tried any issues not made up by the pleadings. Murphy v. McIntyre, 152 Mich. 591; Sornberger v. Berggren, 20 Neb. 399.

We therefore recommend that the bill of exceptions be quashed, and that the judgment of the district court be reversed and the cause remanded for further proceedings.

By the Court: For the reasons stated in the foregoing opinion, the bill of exceptions is quashed, the judgment of the district court is reversed and the cause remanded.

Reversed.

The following opinion on motion for rehearing was filed November 6, 1908. Former judgment of this court vacated and judgment of district court modified. Rehearing denied:

Appeal: Motion for New Trial. If the consideration of a record of the district court does not require the examination of any issue of fact or error of law occurring at the trial, which could only be preserved by a bill of exceptions, a motion for a new trial is not a condition precedent to a review of that record in this court.