Hannah v. Wahlberg

McFARLAND, J.

is an appeal by defendants from a judgment in favor of plaintiff decreeing the specific performance of a contract for the conveyance of certain land, and from an order denying a motion for a new trial.

There are questions discussed in the briefs which do not arise on the record. There are only four specifications of error, and these are merely to the points that the evidence “fails to show” certain named facts; no reference is made to any finding, and the specifications are, perhaps, too vague to present here -any question for adjudication. But, waiving that objection, the first three specifications are that “the evidence fails to show”: 1. “Care and culture of the orchard in question for four years”;

2.

That it fails to show that “'the whole of said orchard was or is in proper condition,” or that the defendant Springer approved the same; and 3. That it fails to show that defendant

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Wahlberg maintained the trees in good condition for four years; but the court found otherwise as to these three points, and the evidence clearly supports the findings.

The fourth and last specification is as follows: “That the evidence fails to show that the defendant llary Springer ever consented to or ratified any assignment of the said contract made by her with plaintiff, or in any way accepted or recognized plaintiff as such assignee.” (There is clearly a mistake here, for appellants evidently intended to say that Springer did not consent to or ratify any assignment to plaintiff of the contract made hy her with the defendant Wahlberg.) If we assume that under this specification appellant can present the contention that respondent cannot maintain this action because the contract was between Springer and Wahlberg and was on its face nonassignable, still we think that the contention cannot be maintained. The facts were briefly these: The defendant Springer, being the owner of a tract of land containing seventeen acres, made a written contract with the defendant Wahlberg, by which the latter promised to plow the land and plant it with a certain kind of fruit trees, and to cultivate and take care of it for four years, and to pay one-half of the taxes and assessments of every kind on the land during that time, and Springer promised that at the end of the four years she would, if Wahlberg complied with his promises, convey to him one-half of the land. The contract provided that it should not be assigned without the written consent of Springer. During the first of the four years Wahlberg entered into a written contract with the plaintiff Hannah by which Hannah agreed to carry out Wahlberg’s contract with Springer. Wahlberg agreed that he would either pay Hannah a certain sum of money monthly, or would at the end of the four years procure a conveyance from Springer of the half of the land and convey the same to Hannah. Soon afterward Wahlberg left the country; he has never paid Hannah anything and is insolvent. Hannah completed the contract with Springer, and the latter, without any objection or complaint, allowed him to take possession of the land and do the work, and demanded of and received from him one-half of the taxes, etc., although she refused to recognize him as taking the place of