Molaskey v. Peery

McKinstry, J. This action, commenced November 14, 1883, was brought by plaintiff, as vendee, to enforce a specific performance of a verbal contract for the purchase of a lot of land, made in January, 1875. The contract as found by the court was:—

“ That on or about January 1, 1875, plaintiff and defendant entered into a verbal agreement, whereby defendant sold and delivered to plaintiff certain lumber to build a house with, and at the same time, and as part of such verbal agreement, sold to plaintiff the lot of land described in the complaint, for the sum of twenty dol[85]lars; that the sale of the lumber and the lot was one agreement, and defendant therein agreed that upon the payment of the sums due for the lumber (which was to be used in building a house on the lot), and the twenty dollars for the lot, that he would execute a deed for said lot, to which plaintiff assented.”

The court found further:—

“ That about January 15, 1875, plaintiff entered into possession of said lot, and received said lumber under said agreement, and thereafter erected a dwelling-house on said lot with said lumber, and cleared off the said land, and made other improvements on said lot; that thereafter plaintiff paid to defendant twenty dollars as principal, and sixteen dollars as interest, on account of his indebtedness for lumber and said lot, and demanded a deed for said lot, which defendant refused, and ever since has refused, to comply with; the plaintiff's said improvements were of about the value of $120; the value of the lumber aforesaid was seventy dollars; that plaintiff resided on said land with his family until December 29, 1881; that plaintiff has not paid for said lot of land, and the sum of forty dollars was due from plaintiff to defendant on said lumber and said lot when this action was commenced.”

It is contended by appellant that the evidence does not sustain the finding that he had not paid the purchase price. But the testimony of the defendant is clear and positive, and if true, the court was justified in finding as it did.

Appellant further contends that the evidence being that a payment made by him of twenty dollars was credited on the general account against him, the law will apply the payment to the charge first made in defendant's books. But if the rule and its application herein be conceded, it does not appear that the first item, in order of dates, charged against the plaintiff, was twenty dollars for the lot.