121 Neb. 207 | Neb. | 1931
This is an action in equity, seeking specific performance of an oral contract respecting issue of capital stock of the Schellberg Fremont Sand & Gravel Company, and for an
The record discloses that in March, 1929, plaintiff had secured an option for a 10-year lease on 290 acres of land, adjacent to the Platte river, in Saunders county, Nebraska, for the mining of sand and gravel. The land was on a line of the Northwestern railroad. Defendant Schellberg was the principal owner of the Schellberg Sand & Gravel Company, engaged in the mining and sale of sand and gravel, with its plant located near Louisville, Nebraska. This plant was on lines of the Missouri Pacific and Burlington railroads. Plaintiff and Schellberg entered into an oral agreement, whereby they were to form a corporation, erect a plant for the mining and sale of sand and gravel from the Saunders county land; and, pursuant to the option, a lease on the said land for 10 years was taken in the name of Schellberg Sand & Gravel Company, but for the use of the new corporation to be organized. Later, the corporation, Schellberg Fremont Sand & Gravel Company, was organized, with Schellberg as president. The contemplated plant was erected on the land and ready for operation about the 1st of August, 1929, and was operated for the remainder of that season. After the organization of the new corporation, Schellberg, as president, caused to be issued to himself stock of the par value of $22,500. No stock was issued to plaintiff at the time. In December following plaintiff demanded to have 50 per cent, of the
The principal controversy is over the terms of the oral contract. Plaintiff claims that his option was to be turned into the corporation at a value of $15,000; that the plant was to cost about $30,000, and that he was to turn into 'the corporation somewhere from $7,500 to $8,500; that Schellberg was to furnish the remaining capital; that each was to have one-half of the stock in the new corporation, •and that plaintiff was to be employed as sales manager at a salary of $350 a month, and, in addition to the salary, was to be paid $2 a car for all sand and gravel sold by him for the Schellberg Sand & Gravel Company.
Defendant Schellberg admits that there was an oral contract, but claims that the option was to be turned into the new company without any consideration to be paid therefor, and that each of the parties to the oral contract was to contribute one-half of the cost of erecting the plant. He claims to have paid into the corporation $22,500, and that plaintiff has paid in but $7,200. The evidence shows that, in addition to his option, plaintiff paid in $7,291.73. The trial court decreed that, upon the payment of $208.27, plaintiff would be entitled to, and there should be issued to him, stock of the Schellberg Fremont Sand & Gravel Company, of the face value of $22,500, thus making plaintiff and Schellberg each the owner of one-half of the capital stock, and enjoined any further issue of stock except as might be ordered by the directors of the corporation.
Whether specific performance of the contract was properly awarded is a question of fact. The evidence on this question is irreconcilable. The trial court had the advantage of seeing the witnesses and observing their manner
After careful consideration of all the evidence, we are impelled to hold that the weight thereof favors the contention of the plaintiff with respect to the contract for the formation of the corporation and issuance of capital stock.
Defendants argue that, since the evidence of plaintiff and his wife was to the effect that plaintiff should receive a commission of $2 a car for sand and gravel sold for Schellberg Sand & Gravel Company, and since the court found against plaintiff’s claim for commission, it must have found that they testified falsely in this respect, and that, therefore, the whole of the testimony of plaintiff and his wife should be disregarded.
The rule of falsus in uno, falsus in omnibus is only applicable when it is found that a witness has wilfully testified falsely concerning a material fact, and the testimony of such witness may be disregarded, unless corroborated by credible evidence. In the instant case plaintiff’s claim with respect to the formation of the corporation and issuance of stock is, to some extent, corroborated by other circumstances proved, while some circumstances proved tend to corroborate defendant Schellberg with respect to the contract for commission. Under the record, neither the trial court nor this court is required to disregard the testimony of plaintiff and his wife.
While plaintiff has attempted a cross-appeal, it was not perfected within the time prescribed by the rules of this
No reversible error has been found. The judgment of the district court is in all things
Affirmed.