Thе trial court sustained a demurrer to the original petition for damages for breach of a contract, and then sustained a motion to strike out a large part of an amended petition, and, after sustaining another demurrer, dismissed the amended petition. Plaintiff appeals.
This lawsuit is based upon a written contract between the plaintiff and defendant, dated Dеcember 15, 1933, which provided, among other things, that as Chalupnik, the plaintiff herein, and second party in said contract, was оperating a creamery at Verdigre, and was well acquainted with the creamery business in north Nebraska, “his good-will and adviсe is of value to the new organization to be made by first party, and first party desires to compensate second рarty for such advice and good-will.”
This contract further provided that, when the new corporation to be formed at Nоrfolk was organized, “10% of which stock is to be assigned and transferred to second party for the considerations hereinbefore stated.” It was provided that such 10 per cent, of the stock should be issued to second party “without any considerаtion other than that hereinbefore stated.”
The plaintiff brought suit, based on this contract, exhibit A, attached to the petition, and set up that the defendant has wholly failed and refused to issue the stock as provided in the contract, and plaintiff prayed for damages in the sum of $10,000. Demurrer being filed was argued and sustained, but plaintiff was given permission to file an amended pеtition, which was duly filed.
The defendant filed a motion to strike out 14 paragraphs of plaintiff’s amended petition, which set up an alleged oral contract, which it was alleged attempted to vary and contradict the written contract, exhibit A, аttached thereto. The district court sustained this motion and a de
The appellant presents as his first proposition of law that “the recitаls of a written instrument as to consideration are not conclusive, and it is always competent to inquire into the consideration and show by parol or other evidence what the real consideration was.” We are cited to Hartman v. Lipovsky,
It may be admitted that, if the contract in the case at bar was ambiguous, parol evidence might be admissible, but in this case the court can easily determine its full meaning when construed as а whole, and the intention of the parties stands out very clearly.
The oral contract, set out in the amended petition, which was stricken out by the trial judge on motion, set out an entirely different agreement than is disclosed in the written contract whiсh is attached to the amended petition.
This court has adhered rather closely - to the parol evidence rulе, as discussed in Theno v. National Assurance Corporation,
After all such paragraphs of the petition as referred
The demurrer was sustained by the trial court on the ground that the contract lacked mutuality, in that it did not obligate Mr. Chalupnik to furnish other than his good-will and аdvice, and it has been held many times that good-will is not a sufficient consideration for an executory contract.
“Reсiprocal promises as the basis of a ‘valid agreement must be equally obligatory upon the parties, 'so that each may have an action thereon; otherwise such agreement is nudum pactum.” State v. Holcomb,
“Contracts entered into or promises made' оn the basis of relations of friendship and good-will, unsupported by pecuniary or material benefit, create at most bаre moral obligations, binding only on the conscience, and a breach thereof presents no cause for redrеss by the courts.” Rask v. Norman,
If the defendant and appellee was suing the plaintiff and appellant on his promises as set out in the written contract, could he recover damages for failure to per
We have examined the record in this case, and find that no prejudicial error was committéd by the trial court, and the 'judgment of dismissal is '
Affirmed.