40 Neb. 325 | Neb. | 1894
This was an action by James E. Jones in the district court of Lancaster county to recover possession of a part of the northwest quarter of section No. 14, township No. 10, range No. 6, in said county, which is fully described in the pleadings, but which does not call for a more specific description in this opinion. At the September, 1890, term of the district court the defendant in error, who was the defendant below, being in default, judgment was entered in favor of the plaintiff in accordance with the prayer of his petition. Three days later, and presumably at the same term, the defendant filed a motion, supported by affidavit, for the vacation of said judgment, which motion was, at the November, 1890, term, sustained and leave given the defendant to answer, which he did four days later, to-wit, on the 15th day of December. At the September, 1891, term a trial was. had, resulting in a finding and judgment for the plaintiff, which was, on the motion of the defendant, set aside and the cause continued. At the February, 1892, term the defendant, by leave of court, filed an amended answer, to which a reply was in due time filed
The errors alleged are: 1. The court erred in vacating the judgment by default. In this connection it is argued that the grounds stated in the affidavit accompanying the motion were not sufficient to excuse the default, and that the motion should have been accompanied by the proposed answer. The affidavit referred to is as follows:
“R. D. Stearns, being firot duly sworn, on oath says that he is attorney for said defendant in the above entitled cause, and has been for the last two years or more; that at the commencement of the September, A. H. 1890, term of the district court affiant spoke to L. C. Burr, one of the attorneys of record in the above cause, and informed him, said Burr, that he, affiant, was attorney for defendant, and told him, said Burr, that he, affiant, was very busy with the criminal docket, and asked said Burr if it made any difference if said answer was not filed for a while, and said Burr said, ‘No, it didn’t make any difference;’ that he would take no advantage of it, as the ease could not be tried anyhow this term; that within a day or so affiant prepared an answer to plaintiff’s petition, except the attaching of a copy of a contract, which defendant desired to make a part of his answer, and which said contract had been mislaid and defendant was unable to find at that time, and the filing of the answer was thereby delayed. Affiant says he was entirely misled by Attorney L. C. Burr in the matter. He had no idea the case could possibly be reached, a jury case, No. 309 on the docket. This said case is one in ejectment, affecting the title to valuable land which defendant claims to be entitled to; that defendant has been a resident of this land some four or five years; has put valuable and lasting improvements upon said land, such as dwelling house,
“R. D. Stearns.
“ Subscribed in my presence and sworn to before me this 27th day of October, 1890. J. I). Harris,
“Deputy Cleric District Court”
It is not claimed for this affidavit that the showing therein is in all respects such as good practice requires. For instance, the defense must be inferred from the conclusions of the affiant rather than the facts alleged. But the vacation during the same term, of judgments by default, is so largely a matter of discretion for the trial court that this court will decline to interfere unless there appears to have been a clear abuse of discretion. (Mulhollan v. Scoggin, 8 Neb., 202.) It may be said also that good practice requires the motion to be accompanied by the proposed answer in order that it may be determined whether there is a sufficient defense to the action. When, however, the court has resolved that question in favor of the moving party upon the evidence in the motion and affidavits and an answer subsequently filed and trial had, a stronger showing of abuse of discretion will be required than where a trial on the merits has been denied. (Westphal v. Clark, 46 Ia., 262.)
2. It is argued that the court erred in admitting in evidence the written agreement upon which the defense rests. In this connection it is deemed proper to set out the material allegations of the answer, which after, a general denial, are as follows:
“Further answering, this defendant alleges that he is in
“ ‘ Law Office of Carlos C. Burr,
“‘Lincoln, Nebraska, May 25, 1886.
“‘In consideration that James A. Baker shall pay me $100 on June 1, 1887, execute a mortgage and notes to me aggregating $1,900, as follows:
$200, due June 1, 1888,
200, a 1889,
200, tc 1890,
200, It 1891,
300, {( 1892,
400, u 1893,
400, ÍÍ 1894,
with interest at six per cent per annum from June 1, 1887, I agree to convey to him by quitclaim deed the undivided (-§ of S. N. W. J) two-thirds of the south half of the northwest quarter 14-10-6. Jas. E. Jones,
“‘By C. C. Burr, AgV
which said agreement was duly filed for record in the office of the county clerk for Lancaster county, Nebraska, on the 25th day of May, 1886, being same land described in petition, interest having been apportioned in partition.
“Defendant further alleges that since entering in and upon the said described premises by virtue of said contract of sale as aforesaid, he has made lasting and permanent and valuable improvements on said premises of the value of $10,000. Defendant further alleges that he has performed all of the terms and conditions of said written contract upon his part to be performed, and upon the first day of June, 1887, this defendant tendered to C. C. Burr, the agentas aforesaid, $100, lawful money of the United States, and at the same time made known his willingness and in
The ground of the objection to the agreement is that according to the testimony of the defendant it was made with the plaintiff and not with Burr as agent, and that the only connection of the latter with the transaction was to reduce the agreement to writing in accordance with the ■dictation of the plaintiff. We will not controvert the proposition that an allegation of a contract through an agent is not sustained by proof of a contract in person by the party sought to be charged. It is asserted by the plaintiff, and readily conceded, that where an instrument is executed in the name of the maker in his presence and at his request, it will be regarded as the personal act of the latter; but that is a rule for the benefit of the adverse party, and has never, so far as we are informed, been given the application here suggested. The defendant might have alleged a personal agreement, but having elected to treat Mr. Burr as agent of the plaintiff the latter will not be heard to complain, since the agreement set out is the identical one tendered to and accepted by the defendant.
3. It is contended that the agreement relied upon is void for want of mutuality. It is true there is found therein no express agreement by the defendant to purchase the land in controversy; but it is charged in the answer, in
4. It is next argued that the evidence does not prove that defendant went into possession under the contract of sale. It is conceded that he was in possession as tenant of Jones at the date of the contract. It is a well established rule that where one is in possession as tenant at the time he contracts for the purchase of the demised premises, his
5. Plaintiff offered to prove by a witness called to testify in rebuttal that the defendant had sold the contract relied on to Mr. Imhoff, and had in pursuance of said sale placed it in the hands of the witness; that Imhoff had paid to plaintiff $200, and agreed to pay the further sum of $800 therefor, and that plaintiff had “surreptitiously obtained said contract” from the witness while the latter was holding it for Imhoff. This evidence was excluded on the objection of the defendant, which ruling is assigned as error. The plaintiff in ejectment must recover on the strength of his own title, and cannot rely upon the weakness of that shown by his adversary. (Butler v. Davis, 5 Neb., 521.) If the contract had been so far executed by the defendant as to entitle him to possession thereunder, it would not avail the plaintiff to prove that a stranger had subsequently acquired rights which would entitle the latter to possession as against him. The trial court therefore did not err in excluding the evidence offered.
7. The question of Burr’s authority to execute the contract mentioned was presented both during the trial and by requests to instruct. It is provided by section 3 of our statute of frauds that “no estate or interest in land, other than leases for a term not exceeding one year, nor any trust or power over or concerning lands, or in any manner relating thereto, shall hereafter be created, granted, assigned, or surrendered or declared, unless by act or operation of law, or by a deed or conveyance in writing, subscribed by the party creating, granting, assigning, surrendering, or declaring the same;” and by section 25 it is provided (hat “every instrument required by any of the provisions of this chapter to be subscribed by any party may be subscribed by his agent, thereunto authorized by writing.” These provisions were construed together in Morgan v. Bergen, 3 Neb., 209, where it was held that a written agreement executed in behalf of his principal by an agent did not satisfy the requirement of the statute, but that the authority of the latter must also be in writing. To this, which is without doubt the general rule, there are recognized exceptions, some of which wil now be noticed. In McMurtry v. Brown, 6 Neb., 375, it is said: “ The character of a power under which an agent
“I hereby acknowledge tender to me of $100, by Jas. A. Baker, J. E. Jones, under a pretended contract of his, dated May 25, 1886, involving the undivided -§ of S. -J N. W. J sec. 14, T. 10 N., R. 6 E., Lancaster Co., Neb., for the reason that I am not the agent of the said James E. Jones, nor authorized to receive any money for him for any purpose whatsoever. C. C. Bure.”
Defendant made repeated but unsuccessful efforts to find Jones, who it seems had left about that time for his home in England. Finally, he was referred to a Mr. Muff, of Crete, as the persou to receive payment of the sum due, to whom he offered settlement, but which was refused on the advice of Mr. Burr, to the effect that the agreement was not binding on Jones. Again, in the year 1890 defendant tendered the plaintiff the full amount due by the terms of the contract, which was also refused. The making of the improvements enumerated does not appear to have been controverted on the trial. Defendant is corroborated to some extent by Mr. Strode, who was present at a conversation of the former with Jones, in May, 1890, when the latter, referring to the amount alleged to be due on the contract, remarked that he wanted all of the money. Although this evidence was contradicted on the trial by the testimony of Jones, who is to some extent corroborated by other evidence, the question was properly submitted to the jury.
8. It is strenuously argued that the verdict is not supported by the evidence. It is sufficient to say that the evidence is conflicting, and while we might have reached a conclusion different from that of the jury, we cannot now disturb the judgment based upon the verdict without overruling a multitude of cases which assert a rule as salutary as it is well established, viz., that this court will not reverse a judgment on account of mere difference of opinion be
Affirmed.
Upon motion for a rehearing, payment into court by the defend-, ant in error of the purcha-e money and interest by September 1,1894, was made a condition of affirmance.