Page:Dakota Territory Reports.djvu/41

 ''5. DEED:''. The recitals in a deed as to the consideration, are not conclusive, but the true and actual consideration may be shown by proof aliunde.

6. CONTRACT:. F sold and conveyed to A and B, a certain parcel or tract of timber land, for the consideration of four hundred dollars expressed in the deed, and the further consideration of one hundred dollars to be paid in lumber; and that the said A and B would erect on said land, within a certain stated time, a good steam saw-mill. A and B failed to erect the mill as stipulated. Held: That the benefit to be derived by F was the difference between the price actually paid, and the value of the land, that being the amount paid by F for the promise of A and B to erect the mill.

{sc|The}} first pleading on part of plaintiff purports to be a petition for specific performance and damages. The petitioner alleges, that on or about the 4th day of November, 1865, he sold and conveyed to defendants a certain tract of timber land, for the consideration of $400, cash down; and, further, that defendants were thereafter, to-wit: in the spring of 1866, to erect and bare completed on said land a steam sawmill, and deliver to plaintiff good sawed lumber to the amount in value of $100—“making in lumber and money $500, and the erection and construction and completion of said steam sawmill. These, altogether united, constituted the consideration for the sale of said tract of timber land, united likewise with the further consideration and fact which formed a large and controlling inducement in the sale and disposition of said tract of land, that petitioner then owned 160 acres of land and a pumber of town lots in the immediate vicinity of said tract so sold, the value of which would have been greatly enhanced in value by the erection and completion of said mill." Defendants failed and refused to erect the mill, or to furnish the lumber as stipulated, and plaintiff prays a decree for specific performance of said contract, and for $500 damages. A supplemental petition was filed, asking that a writ of injunction issue, restraining defendants from cutting timber on said land, which was allowed.

Defendants answering admit the purchase of the land, and the execution of the deed, a copy of which they set out, allege that the only consideration for the same was $400 as expressed