110 Neb. 416 | Neb. | 1923
Plaintiff, George Gesselman, brought this action against R. Walter Phillips, James W. Mansfield and Charles W.
. In September, 1919,.-plaintiff was the owner of 000 acres of land in Hitchcock county, Nebraska,’that was incumbered by’three mortgage's. Plaintiff made application to-, defendants for a loan to take up-the third.mortgage, which' was 'in process.; of foreclosure- and. which amounted to about $1,300. • Their negotiations -.resulted- in defendants1 agreeing to- take up the mortgage and- carry the same for plaintiff,-and to secure them the plaintiff, on September 22, 1919, executed a warranty deed conveying to the defendants 600 -acres of land. At the same time the parties signed a separate contract, in the preparation of’ which a printed form of an agreement for sale of real estate was used. Part of the printed form was filled in, indicating an agreement to sell the 600 acres of land to the defendants for a consideration of $15,000. The following provisions Were inserted in writing: ■ ,
’’ “This is an exclusive, option on this land:and if "sold otherwise party first part-agree's to pay-secoiid parties one-thousand dollars, same as if sold-by second parties. This is-an option on this land for-until-.March 1, 1920, and in case this is not sold by said date this is null and void as to both parties. ■ If this land is sold - within said time the first party agrees to pay second parties one-thousand dollars commission. Possession, if sold, to be given March 1, 1920. Deed to- be .given-at- this -time. Title to be returned to first-party upon payment of- note & mortgage of about thirteen-hundred dollars : with ^ interest from this date at 10 per oent., taken up-by -second parties, if paid by March 1, 1920. Otheiwise'title to be absolute in second parties. In case of sale, of land the $1,300 advanced and one-thousand dollars are. to be paid by (to) second parties. In-case of failure to: pay ’-$1,300 March 1, 1920, second parties are to assume $3,500 to Southwick Loan & Trust Co. only.” • ..... ;
On the 11th day of October, 1919, the defendants sold
The contract also provides that, in the event of a sale of the premises before March 1, 1920, whether made by defendants or others, defendants shall have a commission of $1,000. This clearly contemplates-that defendants are to
The evidence respecting the exercise of the alleged option by defendants is in sharp conflict. They testify that they agreed with plaintiff on the 4th day of October to take the land at $14,000, and that plaintiff, to induce them to do so, agreed to and did give them 50 bushels of wheat. The defendants are corroborated in this by some other witnesses and by the circumstance that they produced a check, which was delivered to plaintiff, dated
We are of the opinion, after careful consideration of all the evidence, that the defendants contracted to sell the land to Weidner for $18,000 prior to the time they exercised their alleged option. This being:.true, they were not entitled to anything except their commission, as agents, in the sum' of $1,000. They have retained $4,000,
Plaintiff claims that defendants are also indebted to him for 50 bushels of wheat, which was turned over to them, to be planted upon the premises, but which they sold and converted to their own use. The evidence discloses that there was a load of wheat, amounting to 50 bushels, turned over to defendants, but there is no evidence in the record as to its quality or value. Because of his failure of proof in this respect, plaintiff cannot recover for the wheat.
The judgment4s reversed and the cause remanded to the district court, .with directions to enter judgment for plaintiff in the sum of $3,000 and interest accruing, at 7 per cent, per annum, from March 1, 192.0, to the date of entering judgment. .
Reversed.