126 Neb. 67 | Neb. | 1934
This is an action at law by Howard L. Crook, plaintiff, appellee herein, against Edward M. O’Shea, doing business as O’Shea Motor Company, defendant, appellant herein. The petition contains two causes of action.
In the first'cause of action, the plaintiff alleged that on the 14th day of April, 1931, he entered into an oral agreement with the defendant, by the terms of which he agreed to pay defendant $818 and the defendant agreed to sell to him one Ford Model “AA” truck and to provide plaintiff with regular, continuous and steady employment with Abel Construction Company, the employment to consist of hauling material from May 1, 1931, until weather conditions rendered road construction work in Nebraska impracticable because of the freezing of materials used in road construction, for which hauling the plaintiff would receive 20 cents a mile for each mile traveled with a loaded truck plus 5 cents extra for the first mile of each trip, and the average daily compensation would be not less than $21.50 over and above the costs of gasoline, lubricating oil and necessary repairs to his truck, and that gasoline and lubricating oil could be purchased from Abel Construction Company at Lincoln wholesale prices. He alleged that, as an inducement and as a part of the negotiations leading to the making of the said contract, the
The second cause of action is similar to the first, the material difference being that one Leslie Yost claims to have entered into a contract with the defendant identical with that of the plaintiff herein, except as to dates, description of truck and amount of damages. Yost has assigned his cause of action to the plaintiff and plaintiff has instituted action thereon herein.
The defendant filed a general demurrer to the petition, which was overruled, and thereafter filed an answer in which he alleged that he sold the two Ford trucks in question at the price of $818 each, upon which trucks each of the parties paid down $250 and gave a note with a conditional sales contract for the balance, which notes and contracts were transferred and later foreclosed on account of default in payment of said notes.
A trial to the jury was had, which resulted in a verdict and judgment in favor of plaintiff for $437.50 on his first cause of action and $387.50 on his second cause of action.
If, upon his pleadings and proof, the plaintiff was entitled to a recovery at all, the judgment in his favor was not excessive, so therefore this point requires no discus
We have set forth in some detail the issues as presented by the pleadings. With the purpose of supporting these issues as to the first cause of action, the plaintiff has adduced the following uncontroverted facts. On or about April 15, 1981, the plaintiff executed a written order for the purchase of a Ford truck from the defendant at the price of $8Í8 on which he paid $250, leaving a balance of $568 to be paid in twelve monthly instalments of $54 each. The order was obtained by one Wisser, an agent of the defendant. The order was accepted by the defendant and on April 17, 1931, a promissory note and a conditional sales contract were contemporaneously executed by plaintiff and Ana L, Crook, his wife, and accepted by the defendant. The note was for the balance of the purchase price of the truck in question and finance charges and the conditional sales contract covered the same truck. The order, the note and the contract are in usual and customary form and contain no reference to employment.
As to the second cause of action, the evidence in this connection is substantially the same, except, as to the dates and amounts and parties executing the instruments referred to. However, in addition, there appears upon the written order the following: “For construction work with Abel Const. Co.”
The plaintiff, as has already been noted, seeks to recover for a breach of oral contracts. In support of the claimed contract of employment contained in the first cause of action, the plaintiff testified in part as follows: “Q. What did Mr. Wisser say? A. Well, he says Mr. O’Shea had a contract with Abel Construction Company to place ten new trucks on the job with them with ten men. * * * Q. Go ahead and give the substance of .the conversation. A. Mr. O’Shea told me about the job. Q. What, did he tell you about it? A. He said he had a contract with Abel to put on ten new trucks with dual
There is other testimony along the sáme line, but, in the main, these questions and answers set forth plaintiff’s claim with reference to employment and income to be derived therefrom. The plaintiff claims that it was these representations and others of like character .and import which caused him to purchase the truck.
As to the second cause of action, Yost, the other com tracting party, has testified in part as follows: “Q. Now-, I will ask you to state the substance of the conversation between yourself and Mr. Wisser at your home the first part of April, 1931, with respect to employment, if any, by the O’Shea Motor Company, of O’Shea, the defendant. A. Well, he came to my house and told me that Mr. O’Shea had a proposition whereby if I would purchase one of his Model “A” dump trucks Mr. O’Shea would furnish me with a job with the Abel Construction Company and the
If defendant is to be bound on a contract of employment with Yost he must be. bound on the basis of the language quoted.
What, then, is the force of the language employed between the plaintiff and defendant in the one case and Yost and the defendant in the other? In a view which we think most favorable to plaintiff, it appears that defendant was seeking to sell trucks and in pursuance of such purpose, personally and through an agent, offered his wares for sale and told these two men, as prospective purchasers, that he had a contract with Abel Construction Company to furnish ten trucks and if they purchased trucks he would give them employment with Abel Construction Company where they would continue to be employed until freezing weather and that for their work the Abel Construction Company would pay them on a fixed basis which would net them a certain daily income. Stripped of its gloss and forceless verbiage, this is the commitment of the defendant.
The defendant nowhere binds himself to the payment of any compensation to any person or persons whomsoever. He only promises orally to secure and to procure employment with a third party, which employment will provide a certain return in compensation for such employment, on which promises the plaintiff and Yost relied.
The evidence indicates that the parties would not have purchased the trucks in question in the absence of this commitment of the defendant, or, .in other words, that this promise was the impelling force or inducement which brought about the execution, and consummation of the contracts of sale of the two trucks.
If, then, the commitments of the defendant were matters of inducement, it therefore is unnecessary for us to
•' A lengthy discussion of this subject' would serve no useful purpose here. It is sufficient, we think, to say that, when fraudulent promises act as the inducement to the execution of a written contract, the remedy is for fraud, arid not upon the oral promise as a contractual obligation. Schuster v. North American Hotel Co., 106 Neb. 679; Davis v. Ferguson, 111 Neb. 691. If the plaintiff had ariy right of action at all, which question we do not determine, it was not for damages for breach of contract' for1 failure to furnish employment.
•in' the light of the conclusion arrived at, it at once becomes apparent that plaintiff has not sustained the causes of action set forth in his pleadings, and, further, that' no suit upon contract or for breach of contract to furnish employment is maintainable, so therefore the decision arid judgment of the district court must be reversed and the cause dismissed.
Reversed and dismissed.