nation of the validity of the ordinance upon the record as it stands. The record must be found sufficient in itself to show that the statutory provisions have been duly complied with. "Notice of the time of holding such meeting, and the purpose for which it is to be held, shall be published in some newspaper published or of general circulation in said city or village, at least four weeks before the same shall be held or, in lieu thereof, personal service may be had upon persons owning or occupying property to be assessed." It appears that personal notice was also given. The validity of the assessments must, then, depend entirely upon that. But it is contended that the personal service was bad. The property owners in the district were personally served with written notices, setting forth the time, place and purpose of the It will be noted that the statute requires that a record of the yeas and nays on final passage shall be recorded. The statute does not affirmatively declare that the reading of Notice of this meeting was published, but the ordinance on three different days must it is conceded by both parties to this litigaalso be recorded. The council record, show- tion that the notice was insufficient, both in ing that the ordinance was adopted and set-point of substance and as to time. ting forth, in full, the vote taken on its passage, meets the specific requirement of the statute. Such a record raises a presumption that the statutory steps required for the passage and adoption of the ordinance have been complied with. The record does not affirmatively show that the ordinance was not read, and, that being the case, it appear-meeting, the description of the lot or tract of ing that the ordinance was passed and the vote taken thereon spread upon the records, a presumption arises that it was read. Town of Ruston v. Lewis, 140 La. 777, 73 South. 862; State v. Cox, 105 Neb. 75, 178 N. W. 913; State v. Wagener, 130 Minn. 424, 153 N. W. 749; Emmons v. Southern P. R. Co., 97 Or. 263, 191 Pac. 333; Harrison v. City of Greenville, 146 Ky. 96, 142 S. W. 219; Monett Electric Light, P. & I. Co. v. City of Monett (C. C.) 186 Fed. 360; 28 Cyc. 396. By section 5147, Rev. St. 1913, prescribing the duties of the city clerk, it is provided that the city clerk "shall keep a correct journal of the proceedings of the council or board of trustees." This section does not specifically describe what the journal shall contain, nor does it make clear just how complete and detailed shall be the record of the council proceedings. There is no specific direction that the reading of ordinances shall be recorded. This general statutory provision, as we view it, so far as it may be involved here is only directory, and a failure on the part of the city clerk to record the reading of the ordinance the third time, which reading, in our view of the law, is here presumed to have taken place, is not fatal. land owned or held by the party served and the amount of tax proposed to be assessed against it. These notices were served from seven to ten days prior to the date of the meeting, which was held on July 13, 1920. Some of the notices, it is true, were, through mistake dated July 23, but in each of them the time specified as the date for the meeting of the council was correctly set forth. The testimony in behalf of defendants and the town marshal's return upon the notices, showing the date of service, stand as uncontradicted proof that all notices were served at least seven days prior to the holding of the meeting. It is the plaintiffs' contention that these notices were insufficient for the reason that they were not served at least four weeks before the meeting. It is argued that the statute requires a four weeks' notice by publication and that a proper interpretation clearly indicates that, where personal service should be resorted to, it was intended that the notice should be served at least four weeks prior to the holding of the meeting. We do not so interpret the statute. The statute does not say that service may be had by publication and that four weeks must elapse after the completion of publication before the meeting may be held, but, on the other hand, says that the notice shall be published in some newspaper at least four weeks before the meeting shall be held, which, as we interpret it, means a publication once each week for four weeks. Cook v. Gage County, 65 Neb. 611, 91 N. W. 559. It is evident that the statute contemplates that the meeting may be held immediately after the four weeks' notice by publication has become completed. Whether that notice became complete imme [5] A further objection is that the record does not affirmatively show the filing by the city engineer of an estimate of the cost of the proposed improvement before the letting of the contract, though such an estimate was a requisite to the validity of the proceedings. The council record, however, does show that the engineer's estimate of the cost of the improvement was approved and adopted. The estimate itself had been lost, but its substance was supplied by parol. Parol testimony was clearly competent for that purpose.diately after the fourth publication or not [6] The further contention is made that notice to property owners had not been given of the meeting of the city council, when it convened as a board of equalization to fix assessments. The statute (Rev. St. 1913, until four full weeks had elapsed after the first publication, we find it unnecessary here to decide. The decisions of this court on that question are collected and discussed in Pohlenz v. Panko, 106 Neb. -, 182 N. W. (186 N.W.) personal service, the notice is complete as without consideration, if accepted before the soon as served. Neither in the case of pub- option is withdrawn or revoked. lished notice, nor in the case of personal serv-4. Vendor and purchaser 18(4)-Giver of ice does the statute prescribe that any certain period of time shall elapse after the service is completed. Where no such time is prescribed by statute, we understand that a reasonable time will be implied. We take it, therefore, that the statute should be interpreted to mean that, where personal notice is resorted to, it must be served so that a party will be allowed an ordinarily reasonable time to prepare for the hearing and to arrange matters so as to enable him to attend. People v. Frost, 32 Ill. App. 242; Burden v. Stein, 25 Ala. 455. In this case the notice seems to have ade quately served the purpose. The meeting of the board of equalization was largely attended by the property owners in the district. None of the property owners appeared and objected that they had received no timely notice of the meeting, and we are unable to say, under the facts in this case, that the personal service, given from seven to ten days prior to the meeting, did not give reasonable notice in point of time. option may revoke without holder's consent; notice to holder of bona fide sale by optionor to third person constitutes revocation. If an option to purchase or sell certain land is revoked by the giver of the option, the consent of the holder of the option is not necessary to a revocation. Notice of a bona fide sale by the giver of the option to a third person brought to the holder of the option before acceptance by him constitutes revocation. 5. Vendor and purchaser 18 (4)-Mere option for purchase indeterminate as to time is terminable upon notice by vendor. "A mere option for the purchase of land, indeterminate as to time is termina ble at any time upon reasonable notice by the vendor." Stone v. Snell, 77 Neb. 441, 109 N. W. 750. 6. Contracts 93 (2)-One may not avoid on ground of not attending to its terms or not reading the document and supposing it different or a mere form. Courts do not permit one to avoid a contract into which he has entered on the ground that he did not attend to its terms, that he did For the reasons given, the judgment of the not read the document which he signed, that he district court is Affirmed. VON KNUTH v. RYAN. (No. 21613.) (Supreme Court of Nebraska. Dec. 21, 1921.) (Syllabus by the Court.) 1. Trial supposed it was different in its terms, or that it was a mere form. Appeal from District Court, Dodge County; Button, Judge. Action by Christian H. Von Knuth against J. B. Ryan. Directed verdict and judgment for the plaintiff, and the defendant appeals, and, the plaintiff having died, the action was revived in the name of Paul Peterson, his No directed verdict where administrator. Reversed. When the evidence upon a question of fact material to the issue is conflicting, and such that reasonable minds might reach different conclusions, the question is one for the jury, and it is error for the court to direct a verdict. 2. Vendor and purchaser 18 (4)-An option without consideration may be withdrawn at any time before acceptance, but one with consideration cannot be withdrawn before specified time. An option to purchase land given without consideration may be withdrawn at any time before acceptance upon giving notice to the other party thereto, but an option founded upon a valuable consideration cannot be withdrawn An option to sell land without consideration or with no time specified in the instrument within which the option must be accepted may be revoked at any time by the giver of the option upon notice to the holder of the option before acceptance. The offer when accepted constitutes a contract of sale; and the same result flows from the acceptance of the option Abbott, Rohn & Robins, and John L. Cutright, all of Fremont, for appellant. Baldrige & Saxton, and Viggo Lyngby, all of Omaha, for appellee. Heard before MORRISSEY, C. J., and ROSE, ALDRICH, and FLANSBURG, JJ., and GRAVES and WELCH, District Judges. GRAVES, District Judge. This action was commenced in the district court for Dodge county by Christian H. Von Knuth, who is appellee, against J. B. Ryan, the appellant, for the recovery of $800 and interest, as damages arising out of the alleged failure of Ryan to perform the terms of a certain option contract. The trial was to a jury, and at the close of the evidence the plaintiff moved the court to direct a verdict in his favor, which motion was sustained, and there was a verdict and judgment accordingly. Defendant appealed to this court. Subsequent to the trial the plaintiff, Von Knuth, died, and the action was revived in the name of Paul Peterson, his administrator. The chief error relied upon by the defendant is the action of the trial court in refus For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes ing to submit the case to the jury under, denies that he ever signed the instrument, proper instructions and directing the jury to a copy of which is set out in the plaintiff's return a verdict for the plaintiff. petition, and alleges that he never signed any contract or written instrument with plaintiff covering said real estate. He admits that he jotted down the terms of sale on a piece of paper and signed his name thereto, but denies that he ever received the consideration expressed in the alleged option agreement, or any consideration whatever, and denies that there was an option period of 90 days in the instrument when signed, or that he authorized plaintiff to insert said period of 90 days in the contract, and denies that plaintiff ever paid or offered to pay him the sum of $1,500 or any sum, as a first payment, and denies that the alleged sale to Miller of said land was bona fide, and prays for a dismissal of the ac tion. The reply is a general denial of all new matter set out in defendant's answer. The pleadings clearly raise the issues: First, that there was no consideration paid for the option contract sued upon; second, that there was no period of option stated in the contract at the time of the signing of the same; and, third, that the plaintiff, Von Knuth, did not make a bona fide sale of the property to C. G. Miller, as alleged, and had actual notice that the land had been sold to McTeason before he (Von Knuth) notified Ryan that he accepted the option. The petition alleges, in substance, that. on the 12th day of July, 1919, the defendant was the owner of a certain 80 acres of land, and that on said day defendant entered into a certain written optional contract with plaintiff, wherein he agreed to convey the real estate to plaintiff, or any person designated by plaintiff, in consideration of the price of $12,000. The contract is set out in the petition, and the option is for a period of 90 days, recites a consideration of $1, and provides for a cash payment of $1,500 at the time of the sale, the assumption of a mortgage of $6,400, and a payment of $4,100 cash on March 1, 1920. The petition alleges, further, that in pursuance of the agreement above mentioned plaintiff sold said premises to one C. G. Miller on the 14th day of July, 1919, and immediately entered into a written contract for the sale of the same with C. G. Miller, who thereupon, it is alleged, made a payment to Von Knuth of $1,500 in cash on the purchase price; that immediately upon making the sale aforesaid, it is alleged, appellee made diligent effort to communicate with defendant in order to advise him of said sale and notify him to furnish an abstract and execute a deed, but that plaintiff was unable to find him; that on the 15th day of July, 1919, plaintiff advised defendant of the sale aforesaid, and of his election to take under said option contract, by telegram from Omaha, a copy of which telegram is set out in the petition; that shortly thereafter plaintiff, it is alleged, tendered to defendant the initial cash payment of $1,500 and demanded that defendant carry out the terms of his agree-sideration, the record discloses the acknowlment, but that defendant absolutely and unconditionally refused, and has ever since refused, to comply with his agreement; that prior to the expiration of the contract between plaintiff and defendant aforesaid, and prior to the expiration of the 90-day period therein provided, defendant sold the land described to a third person, and thereby incapacitated himself from performing his contract with plaintiff, and placed himself in a position whereby he could not comply with his contract and thereby repudiated it; that, by reason of the foregoing, plaintiff has sustained damages in the sum of $800 and interest from July 15, 1919, for which he prays judgment. The defendant by his answer denies each and every allegation contained in the plaintiff's petition, except such allegations as are specifically admitted, and admits that on the 12th day of July, 1919, he was the owner of the land described, and further admits that on the 14th day of July, 1919, he sold the aforesaid lands to one Hans McTeason, but denies that at any time he ever entered into an option contract with plaintiff, and From a careful consideration of the record, we find that there is a conflict in the testimony as to whether any consideration was paid, and as to the period of the option. as well as to the bona fides of the alleged sale by the plaintiff to C. G. Miller. [1] As to the payment of the dollar con edgment thereof in the option contract; that plaintiff and his wife testified the consideration was paid, and that the defendant positively denied its payment. As to the figures and word "90 days" being in the option contract at the time the same was signed by defendant, the record discloses the denial by defendant. The testimony of the witness Debel, an attorney of Blair, Nebraska, is that upon request of Von Knuth, about the middle of July, although not positive of exact date, he wrote into the option contract the description of the land and the word "days," but is not certain that the figures "90" are in his handwriting, but thinks they are. Plaintiff states positively that he wrote in the figures and word "90 days" before the option contract was signed. As to the bona fides of the sale by plaintiff to C. G. Miller, the testimony of the plaintiff and Broderson agree that about 5 o'clock p. m., July 15, the plaintiff met the witness, Paul Broderson, on the highway near the Ryan eighty, in Washington county, at which time they talked about the sale of the land, (186 N.W.) No particular formality is re and Broderson told plaintiff that he and his acceptance. son-in-law, McTeason, had already purchased quired to revoke an option to purchase which the land. Their testimony is conflicting as in fact is revocable. Jester v. Gray, 188 to what else was said at that time. Brod- Iowa, 1249, 175 N. W. 758, 177 N. W. 475; erson testifies that, when he told plaintiff Frank v. Stratford-Hancock, 13 Wyo. 37, 77 that McTeason had already bought the Ry- Pac. 134, 67 L. R. A. 571, 110 Am. St. Rep. an eighty, plaintiff replied that "Ryan" | 963. could not sell it. Plaintiff denies that he so replied, but claims to have told Broderson "that he (Ryan) couldn't sell it; I had an option on the farm and it was sold." The record discloses that the night letter sent by plaintiff to defendant, notifying him of the acceptance and sale to Miller, was received for transmission during the night of July 15, 1919, and the letter and envelope addressed by C. G. Miller to defendant, dated It follows that the action of the trial court July 14, 1919, was postmarked 12 p. m., July in directing a verdict for the plaintiff was 15, 1919, about seven hours after the con- error for which its judgment should be reversation in which Broderson informed versed; and said judgment is, therefore, replaintiff that the land had been sold to Mc-versed and remanded for further proceedTeason. "Where the evidence upon a question of fact material to the issue is conflicting, and such that reasonable minds might reach different conclusions, the question is one for the jury, and it is error for the court to direct a verdict." Tarnoski v. Cudahy Packing Co., 85 Neb. 147, 122 N. W. 671; Gillis v. Paddock, 77 Neb. 504, 109 N. W. 734; Doyle v. Fronek, 82 Neb. 606, 118 N. W. 468; Union National Bank v. Moomaw, 106 Neb. -, 184 N. W. 51. [2-6] We find no evidence of fraud in the inception of the option contract. Appellant admits that the terms of sale in the option contract, and the signature thereon, were in his handwriting. Hence, he is bound by the terms of the option contract as it was when signed. "Courts do not permit one to avoid a contract into which he has entered on the ground that he did not attend to its terms, that he did not read the document which he signed, that he supposed it was different in its terms, or that it was a mere form." 9 Cyc. 389. If the contract was without consideration, or no period fixed within which to exercise the option, then the giver of the option had the right to withdraw the option upon notice to holder of the option. 10 R. C. L. 687, § 18; 27 R. C. L. 340, § 37; 6 R. C. L. 603, § 26; Jester v. Gray, 188 Iowa, 1249, 175 N. W. 758, 177 N. W. 475; Cummins v. Beavers, 103 Va. 230, 48 S. E. 891, 106 Am. St. Rep. 881, 1 Ann. Cas. 986; Stone v. Snell, 77 Neb. 441, 109 N. W. 750. If the option is revocable, notice to the holder of the option of the sale by the giver of the option to McTeason before acceptance of the option is notice of withdrawal of the option. 6 R. C. L. 603–605, §§ 26, 27; Wullen waber v. Dunigan, 30 Neb. 877, 47 N. W. 420, 13 L. R. A. 811; Mooney v. Daily News Co., 116 Minn. 212, 133 N. W. 573, 37 L. R. A. (N. S.) 183. ings. Affirmed. Suit by Cyrus E. Smith and another, partWant of consideration may be shown,ners as Smith Bros., against Charles Bereven though the contract acknowledges the trand, for specific performance of a contract receipt of one dollar. Graybill v. Brugh, 89 for sale of land. Suit dismissed, and plainVa. 895, 17 S. E. 558, 21 L. R. A. 133, 37 Am. tiffs appeal. St. Rep. 894; Cummins v. Beavers, supra. To effect a revocation of a revocable option to purchase, it was only necessary that notice of sale by the giver of the option be brought to the holder of the option before John F. Cordeal, of McCook, for appellants. J. L. McPheely, of Minden, for appellee. Heard before DAY, DEAN, and LETTON, JJ., and E. P. CLEMENTS, District Judge. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes DEAN, J. Plaintiffs sued for the specific [wanting to sign the deed." December 21, performance of an alleged contract for the 1918, Graves went to Upland and saw desale of land. The court dismissed the suit, fendant. This was two or three days after and they appealed. the expiration of the offer contained in deSubstantially these facts were developed fendant's letter of September 17, 1918. On at the trial: that date Graves tendered the $2,000 pay In 1918 defendant was the owner of a quar-ment which is referred to in the contract. ter section of farm land in Hitchcock county. Respecting this interview Graves testified September 16, 1918, W. S. Graves, a real es-that, with respect to the tender, defendant tate agent, sent this letter to Bertrand: "Palisade, Neb., Sept. 16, 1918. Mr. Charles Bertrand, Upland, Neb.-Dear Sir: Do you own or control the S. W. 4 of 7-3-32? If so is it on the market? Would like to have it on my list, as I am making out a new list. Inclosed find stamp and a description card. Please return card and I will try and get your price. My commission will be $1.00 per acre. Please mention terms. Yours truly, W. S. Graves." To which Bertrand replied: "Upland, Neb., Sept. 17, 1918. Mr. W. L. Graves, Palisade, Neb.---Dear sir: Your letter inquiring of my land, the S. W. 1⁄4 7-3-32 at hand. Will say I will sell for $4,000 net to me, 2,000 down, balance 5 years at 7%. This offer is for 90 days. Resp., Charles Bertrand." said "he would not take it, he would not accept it," and that in the same conversation defendant said, “My wife won't sign the deed." Graves did not tender a note or a mortgage to defendant. The record does not disclose any authority given by defendant to Graves to do anything with respect to the land other than that contained in his letter of September 17, 1918. It is argued that defendant's letter of September 17 authorized Graves to enter into a written contract with plaintiffs, in defendant's behalf, for the sale of the land. We do not think so. It plainly appears from a comparison of the letter, and the contract as prepared by Graves, that the latter far exceeded the terms submitted in Bertrand's letter. September 19, 1918, plaintiffs offered $4,500 The contract assumed to provide that the for the land, through Graves, who drew up a unpaid purchase price should be payable on sale contract. The contract is a lengthy in- or before five years, and it provided for a strument. It provides, inter alia, that plain- deposit of the papers in escrow. All of this tiffs shall pay $500 earnest money as a part and other provisions in the contract, as preof the purchase price, and $2,500 on approval pared by Graves, were unauthorized by deof abstract and deed, the remaining $2,000 fendant. And, besides, no tender of a note to be paid by a $2,000 note and mortgage due or mortgage was made at any time to Beron or before five years, with 7 per cent. an-trand. In passing, it may be noted that the nual interest. It provided, too, that defend-alleged tender was not made within the time ant should have 30 days in which to procure specified in the letter of September 17, 1918. and furnish an abstract and execute a deed. As pointed out in the decree of the learned A reasonable time was reserved in the con- trial court, the instrument purporting to be tract for plaintiffs to examine the title. Pro- a contract between plaintiffs and defendant vision was also made "that all papers and was not an acceptance of defendant's offer, money in connection with this transaction but was in fact a counter offer, which was shall be deposited in escrow with the French-refused by defendant. man Valley Bank of Palisade, Nebraska, and [1-3] It is elementary that an acceptance both parties hereof authorize said bank to de-of a written offer to sell land, in order to liver money and papers" to the respective create a contract, must conform strictly to parties designated in the contract. Graves signed defendant's name by himself as "special agent." Plaintiffs also signed the instrument. September 19 Graves wired defendant that he had sold the land in suit pursuant to defendant's letter of September 17. The next day Graves wrote defendant requesting him to send the abstract "to the Frenchman Valley Bank, Palisade, Neb., and we will have extended." September 24, 1918, defendant wrote Graves that his wife "insists on not the terms of the offer. A letter which merely states the terms upon which the owner is willing to sell his land does not empower the person addressed to execute a contract in the owner's name for the sale of the land. Ross v. Craven, 84 Neb. 520, 121 N. W. 451. Ratification by defendant of an alleged contract for the sale of land is not shown in the record. The judgment of the district court is right, and is in all things Affirmed. |