
    G. B. Darr v. M. F. Mummert.
    Filed January 5, 1899.
    No. 8603.
    f. Construction of Contract to Sell Land. By a contract in writing signed by A and B the former agreed to sell and convey to the latter certain described real estate, provided the latter made certain specified payments of money at certain specified times. The contract contained no agreement on the part of B to purchase the real estate or make the payments mentioned. Held, (1) That by the contract A gave B the option to purchase said real estate; (3) that B’s failure to make the payments specified did not invest A with a cause of action against him on the contract.
    3. Action on Contract to Sell Land: Betition. The petition set out in the opinion and held not to state a cause of action.
    Error from the district court of Dawson county. Tried below before Greene, J.
    
      Reversed.
    
    
      G. W.'McKamar, for plaintiff in error.
    
      G. TP. Fox, contra. ,'
   Ragan, C.

M. F. Mummert brought this suit in the district court of Dawson county against G. B. Darr. Darr interposed a general demurrer to Mummert’s petition, which the court overruled. Darr refused to plead further, and judgment was entered against him, to review which he has filed here a petition in error.

1 The only question in the case is whether the petition states facts sufficient to constitute a causeNof action. The jietition, so far as material here, was in the words and figures as follows:

“The plaintiff complains of the defendant, for that on or about the 1st day of November, 1893, plaintiff and the defendant, for the considerations named in the real estate contract hereinafter copied, made in writing a real estate contract, of which the following is a copy: “This agreement, made this 1st day of November, A. D. 1893, .between M. F. Mummert, of Bushnell, McDonough county, Illinois, of the first part, and George B. Darr, of Lexington, Dawson county, Nebraska, of the second part, witnesseth: That in consideration of the covenants and agreements herein specified the said party of the first ' part hereby agrees to sell unto the said party of the second part the following described real estate, situated in Dav-son, county, and state of Nebraska, to-wit: The northwest quarter (J) of section twenty-three (23), in township ten (10) north, of range twenty-two (22) west of the 6th P. M., in Dawson county, Nebraska, as designated by the records of said Dawson county, for the sum of $2,000, $400 of which has been paid in hand, the receipt of which is hereby acknowledged. Now if the said party of the second part shall pay to the party of the first part punctually the several sums set forth, and at the dates set forth below, to-wit, $400 on or before the 1st day of November, 1895, $1,200 .on or before the 1st day of November, 1897, at the office of the Lexington Bank, Lexington, Nebraska, with exchange, and with interest at the rate of eight per cent per. annum from date hereof until the Avhole sum is fully paid, and regularly and seasonably pay all taxes that may be lawfully assessed against said premises, and in case said party of the second part or his legal representatives shall pay the several sums of money aforesaid, at the several times above limited, and shall strictly and literally perform all and singular the aforesaid agreements after their true tenor and intent, then the said first party will convey, or cause to be conveyed, to said party of the second part by warranty deed the above described premises, except taxes of 1893 and thereafter.’ Said real estate contract was so made in duplicate, and when so made the plaintiff delivered one of the said duplicates to the defendant and the defendant delivered the other of said duplicates to the plaintiff, and the $400 cash payment mentioned in said contract was paid by defendant to plaintiff. When said contract was so made and delivered the plaintiff was the owner of the land described therein. At the time of the making and delivery of said contract as aforesaid the defendant, under said contract and with the assent of plaintiff, took possession of said real estate, and ever since then he and one E. B. 'Smith, to whom defendant assigned said contract, have had possession thereof, and have had the exclusive use thereof. No i)art of the $400 payment mentioned in said contract and due on or before the 1st day of November, 1895, as therein provided, has been paid, nor has any part of the interest thereon been paid, and there is now due from the defendant to the plaintiff on said real estate contract the sum of $-100, with eight per cent interest per annum from the 1st day of November, 1893. No part of the interest on the $1,200 payment mentioned in said real estate contract has been paid, and there is now due from the defendant to the plaintiff on said real estate contract, as interest on said $1,200 payment, the sum of $192. The plaintiff therefore asks judgment against the defendant for the sum of $592, with eight per cent interest on $400 thereof from the 1st day of November, 1893, and for costs of suit.”

What contract between these parties does the writing copied into the petition evidence? It is a contract and agreement on the part of Mummert to convey the real estate described to Barr, if the latter should make certain payments at certain times, Barr did not promise to make these payments, or any of them; did not promise to purchase the real estate. The effect of the agreement of the parties was that Mummert gave Darr the option of purchasing the real estate on certain conditions. The petition sets out what the contract between the parties was, but fails to allege th¿t Darr has broken any contract made with Mummert, and therefore it fails to state a cause of action. The judgment of the district court is reversed and the cause remanded.

Reversed and remanded.  