DocketNumber: No. 17,104
Citation Numbers: 94 Neb. 141
Judges: Fawcett, Reese, Sedgwick
Filed Date: 6/26/1913
Status: Precedential
Modified Date: 7/20/2022
The suit upon the cause of action involved in this case was first instituted by Bernard McNeny, as assignee of Joshua Rushton, against the defendants, and upon trial in the district court the then plaintiff recovered judgment. The defendants appealed to this court and secured a reversal of the judgment and a remand to the district court. The opinion was written by the late Elisha C. Calkins, -Commissioner, and is reported in 81 Neb. 754, 761, where the principal facts are stated. Upon the cause being remanded to the district court, a second trial was had, the jury failing to agree. A third trial was had to a jury, which returned a verdict against all the defendants, on which a judgment was rendered, and from which they appeal.
In view of the statement of facts contained in the
As shown by the former opinion, the question of jurisdiction was presented. Carpenter resided in Webster county. Burke and Campbell were residents of Chase county. The suit was commenced in Webster county, where service of summons was had on Carpenter, and service made upon the other two defendants in Chase county. If there was no liability as against Carpenter, the others could not legally be sued in Webster county with service of summons in Chase county. The question of the liability of Carpenter became an important one, as affecting, not only his rights, but those of Burke and Campbell. If Carpenter was interested in the agreement by which Burke and Campbell sold the land to plaintiff, as a party thereto, or had joined with them in the perpetration of any fraud upon Rushton, and Rushton had rescinded the contract, either for fraud or the failure of Burke and Campbell to comply with its terms, and plaintiff was entitled for either reason to recover back the money which he had paid on the attempted purchase of the land, Carpenter would be liable, and the suit could be maintained in Webster county, where he resided and was served with summons.
This question was submitted to the jury upon quite a large volume of conflicting evidence, the claim of plaintiff
The Avritten contract which furnishes the basis of plaintiff’s action is as folloAvs: “This agreement, made and entered into this 11th day of October, A. D. 190G, by and between Joshua Rushton, of the toAvn of Esbon, R. P. D. No. 2, county of JeAvell, and state of Kansas, of the first part, and Burke & Campbell, of Imperial, county of Chase, and state of Nebraska, of the second part, witnesseth: That the said party of the second part covenants and agrees to and with the said party of the first part to transfer by warranty deed, together with abstract posted to date shoAving clear title (to) the southeast quarter of section twenty-nine, in township seven north, of range thirty-
It will be observed that, while this writing fixes a definite time for the final payment, there is no stipulation as to when the deed should be delivered. But, as under such conditions the payment of the price and the delivery of the deed are concurrent acts, the deed was due at the time of, and upon the payment or tender of, the purchase price. Primm v. Wise & Stern, 126 Ia. 528; Webb v. Hancher, 127 Ia. 269; 39 Cyc. 1334. It may be further noted that the parties so construed the contract. The date fixed for the final payment wras January 20, 1907. On that day a tender is alleged to have been made of the amount due on the contract, and demand made for the deed. Defendants did not procure the deed, nor could they, as they did not have the title to the property. They had an option to purchase, but they had not paid the amount due upon their option, and the title was still in the original owner. Not having title at the time when they should have conveyed, they were not in a position to demand an extension of the time in which to make the conveyance, and the tender of the money and demand for the deed, with their inability to convey, gave plaintiff the right to rescind, which he did, and entitled him to a return of the $1,450 which he had paid. Webb v. Hancher, supra. At that time there was an unpaid and unsatisfied mortgage for $1,100 on the land, which should have been satisfied of record before or at the time for the conveyance. Plaintiff was under no
There was a sharp conflict in tbe evidence upon tbe trial as to whether there was a misrepresentation of tbe value of tbe land by defendants to plaintiff before tbe contract of purchase was finally made. A strong showing was made by tbe defense that tbe property was actually worth tbe value placed upon it by the defendants. But, upon tbe other band, evidence was produced to tbe contrary, and this placed tbe solution of tbe question in tbe bands of tbe trial jury. While tbe writer hereof, bad be been tbe trier of fact, might have decided this question of fact in favor of tbe defense, we cannot say that tbe verdict in that regard is not sufficiently supported by tbe evidence. However, did plaintiff’s right to recover depend upon that question alone, tbe plaintiff having seen tbe land and bad the opportunity to know its value, we should seriously question bis right to recover; but, as we view the case, this is not a controlling question. This subject was properly presented to tbe jury by tbe seventeenth instruction, given at defendants’ request.
It is claimed by appellants that there is a conflict between tbe eighth and fifteenth instructions given to tbe jury. By tbe second instruction tbe jury were told that tbe burden of proof was on tbe plaintiff, and, before they would be warranted in returning a verdict in his favor, be must establish by a preponderance of tbe evidence tbe truth of the material allegations of bis petition, not admitted, which were that the sale of tbe land was made by Burke and Campbell for and on behalf of themselves and Carpenter; that plaintiff was induced to enter into tbe contract because of statements made by Carpenter that tbe three were the owners of tbe land, the legal title being held by Burke and Campbell; that such representations or some of them were false when made; that plaintiff re
The case is not without its perplexing questions, but, upon a review of the whole record, we are not satisfied
Affirmed.