406
. FEDERAL REPORTER,vol.
45.,
and rec.eivable in payment, (If it. r>toPllrly tendered, the county court ". could waive any 89-ch,irregularity in the time and mode of presentingtheir own obligations. with them in the acconnt." There seems to be little need of pursuing the "tlbject The only acts complained of that ,epuld possibly regarded as entitling the relators to any of the reliefsought in this proceeding, are those last considare mere irregularities, the county ered, ·and it seems that C()urt has the power to. waiVe, and has already waived by approving the treasurer's settlement. !talso stands admitted by the motion to quash that the action of the county court in waiving such irregularities was 110t due to any fraudulent. combination to injure the relators, but was .done in the exercise of point of a sound judicial discretion .reposed in view, therefore, the return made by the respondents is sufficient, and the motiou3 to quash must be overruled. It is so ordered.
NORRIS
".Fox et al. ,
(CCrcuAt Court, N. D. M1.s801J/I'£, E. D. March 8, 1891.) SPECIFIO PERPORHA.NOi!:....MuTUALJTY op' CONTRACT.
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A contract wbereby plaintiff to procure a deed to be made to defendant of oertain land owned by a persop, in llonsideration wber...of defendant agreed to convey to plaintiff certaln'other land,'ls not mutual so far as the remedy for its enforcement Is concerned, and cannot·be specifically enforced. since plaintiff's agreement to convey land of another but only subjects plain. . tiff to an action for breach thereof.
In Equity. This is a bill for specific performance of Ii contract for the. exchange of lands. Norris,the complainant, by an agreement in writing dattJd September 12, 1889, bound himself "to procure a warranty deed consubject to a certain incumbrance, veying * * * to certain land situated.iu Butler county, Kan., and "to furnish anabstract showing good title," except as to the incumbrance, in consideration whereof Fox on hisparLagreed and bound himself "to convey by general warranty deed Norris, or anyone named by him," certain land situated in Monroe.county, Mo. At the time the contract was executed the title to the Kansas land WIlS vested in one J .·E. Robbins. Noms 8ubsequentlyobiained a deed from Robbins and wife, to Fox, but the latter refused' to: accept the same, or comply with the tract, for various ,reasons unnecessary, to be mentioued. whereupon the present bill was' .filed. ' W. O. L.'Jewett, for complainant. . .' HarrilJon&,1Ifdh,am and R.. P. defendants. THA Yii, }. , statjng 0e been(ofced,in, this Speci Qf
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PAC·. R. CO.
407
far as the remedy for its enforcementi5CQlwerned. Tpe rule is fundamental that a contract will ,not btl specifipally ,enforced unless it is oblig.atory on both parties, nor unless. both parties lJ,t the time it is executed have the right to resort to equity for its specific enforcement. Marble Co, v. j?ipky, 10 Wall. 34:0j,,Bodine v. Glading, 21 Pa. St. 50; Duvallv. Myers, ,2 Md. Ch. 401; Gel'1nan v. Machin, 6 Paige, 288; Boucherv. VanIn.t8kirlc,2 A. K. Marsh. 345; Duff v. Hopkins, 33 Fed. Rep. 599,...608. And where acontra,ct when execlltedis notspecifically enforceable against parties, he cannot, by subseClllerit performilnceof those conditions that could not be .specifica1ly enforced,. put himself in a position to dtlIMnd specific enforcement against the other party.. Hope v. Hope, 8 De Gex,M. & G. 731-736';Fl'y, Spec. Perf. (3d Ed., Amer. Notes,) § 443. In the case at bar the agreement of Norris to procure a warranty deed of land at the time belonging to another,was of that nature that only an action at law would lie for a breach: of the ag,reement. As'Fox <lould Dot compel specific performance of the contract when made,and only had his remedy at law by a suit for damages, the complainant must . resort 'to the sarrieremedy., .. ' The bill is dismissed, without prejudice to the complainant's right to sue, at law.
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Under Rev. St. Mont. 1879, p. 508, § 2, l'rqviding that action for nllgligel)tly cau:siilg death ,shall be llrought' by the perlloi131' representative for the exclusive benefit. of. the widow. a\ld".next, of kin, it 1;()the action.that there be a ' widow or next of kiIi; and that fact must be alleged.in the complaint. SA1lfE-W AlYER OF' DEFlliQTiJ. ' Where the complaint failed to allege the existence of next of kin; and evidence of the fact.was admitted qver defeJ:ldant's and,his exception to the is saved, the defect .is not 'cured by verdict, and plaintil! will not be'held to have waived his objection by his,failure to demur.' ' As thewid\lw and next Of ,kin are entitled tqth,e of the action irrespective of any 'legal claim on -the decea'sed, if he had sur"'ived, for support, theconiplaint is not insufficient because it fails· to' set. out specifically; the damage which they sustained by 1I-i8 death.. -' ElAME-DAMAGES: 01/ DAMAGES. " '
DEATE BY WBO"'GFUL ACT-PABTIES.....PLEADING. .
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In estimating'the damages the jury must ttike into coliilideration the age of deceased, tbe'probability .of the extent ,of hisllfe, his wages, personal habits, tion, and capallity to labor and make, and save money,anq the probability that if be hadJlived he would have been df some pecuniary benefit to them; and,where it had a sister l\.ndtWo br.otherslivipg;in Deomarkjthat he was a,briqgllcarpenter, and re.oeived $2 a daYj thatheJlad been at work three or four motlths, and had sent some money to'his 'sister, {how much did not appear;> _and "tnere nO' evidence,.s 1'.0 his .his capacity for' earning l}nft:saving money"pr all to. the .9f pecuIiilLl'ybenefit 1"1 ;be by.t;tl.e,next of kin from' hIs estate it he had lived longer,""-'a'Verdict Of'$1.750 will'be Bet aside as e¥cemYe, , ' . : . ; : !' , '
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