90 Neb. 370 | Neb. | 1911
This is a suit by vendors to foreclose a contract for the sale of real estate. Defendants áre the purchasers. According to the petition, the purchase price was $6,005, defendants agreeing to pay $5 down and $1,000 annually for six years with interest on the entire debt, each of the six deferred payments being evidenced by a separate promissory note executed by the purchasers. The contract is set out in the petition, and refers to the notes in these words: “Said sum of $6,000 is further evidenced by six
"(3) On or about June 11, 1907, the date of the contract set out in the petition, said August Boll and defendants had numerous matters of dispute and controversy growing out of their prior dealings just referred to, some pending in suit brought in the name of said Charles F. Boll; and said August Boll, always acting with the fullest authority and consent , of said Charles F. Boll, made and effected with the defendants a compromise or settlement according to which the defendants were to pay, in full for all the lots described in the contract set out in the petition, a balance of $5,000 only in yearly payments of $1,000 each. Said August Boll insisted, however, that the contract should be drawn for $6,005, as set out in the petition, accompanied by six notes, and that the $3,000 note last falling due according to its terms should be kept and not delivered by the defendants and he would mark and indorse it paid.
"(4) Thereupon, the defendants and said August Boll carried out said arrangement, the one $1,000 note not being delivered, and being marked and indorsed by said August Boll: 'Paid July 12, 1907. August Boll.’”
Allegations of new matter in the answer are denied by a reply containing this plea: "These plaintiffs further deny the allegations and each of them in paragraph three in said answer, except that these plaintiffs admit that the said August Boll was acting for them as their agent in and about the transfer of and sale of said property to the defendants, but the plaintiffs allege the fact to be that
After a full hearing, the trial court found that “August Doll, as agent of said Charles F. Doll, made with the defendants the agreement set out in paragraphs three and four of the said answer, and that the $1,000 promissory note last maturing, to wit, on July 1, 1913, was pursuant to said agreement never delivered by defendants, and- was pursuant to said agreement indorsed by said August Doll: ‘Paid July 12, 1907. August Doll.’ The court finds as a matter of law, however, that all evidence admitted to prove the agreement set out in paragraphs three and four of the said answer was incompetent, irrelevant and immaterial, for the reason that said evidence tended to vary and modify a written contract.” From a decree foreclosing plaintiffs’ lien, including the note in controversy, defendants have appealed.
Under the proofs admitted in evidence by the trial court, the findings of fact quoted are clearly correct. The conclusions of law, however, cannot be adopted. The reply admits that August Doll acted for plaintiffs in selling the real estate and in making the contract pleaded in the petition. That contract refers directly to the notes and they are all parts of one transaction. The last note of the series was indorsed “paid.” The indorsement was made at the time of the execution of the note, which was never in fact delivered. The indorsement was an inducement to defendants to sign the contract of sale. Plaintiffs’ agent made the indorsement for the puipose of selling his principals’ property. It was clearly a part of the contract and note. The parties had a right to transact business in that manner though it is not the usual method. The general rule is that a memorandum or indorsement
It follows that the vendor’s lien does not include the amount of the note marked “paid,” and that defendants
Reversed.