89 Neb. 575 | Neb. | 1911
In this opinion we have simply considered and decided the case actually tried in the district court and presented to this court.
The petition alleges that on July 13, 1908, the parties entered into a contract, not in writing, whereby defendant agreed to sell and convey to plaintiff within a reasonable time thereafter a quarter section of land, described, for the consideration of $11,600; that on the 23d day of July defendant, pursuant to said contract, made and delivered to plaintiff a deed for such land; that thereafter, on July 27, “the defendant by fraud and force took and removed said conveyance from the possession of the plaintiff, and it is not now in the possession or under control of the plaintiff;” that plaintiff “has tendered to defendant the full agreed purchase price of said real property and demanded a deed of conveyance thereof, but the defendant has refused and now refuses to so convey said property, and has wrongfully and without plaintiff’s consent rescinded the aforesaid contract of sale, to the plaintiff’s damage;” that the land was during all of the times mentioned and now is of the value of $16,000, and prays judgment for $4,400.
Tiie ansAver denies generally all allegations of the petition not admitted; expressly denies that defendant ever entered into any contract with plaintiff for the sale or conveyance to him of the lands in controversy; and alleges that on July 13 plaintiff and defendant engaged in a bantering conversation with reference to the taxation of farm lands in Colfax county; that in the course of such bantering conversation defendant “as a joke and a jest” offered to sell to plaintiff the lands in controversy at the assessed valuation for the year 1907, which was $72.50 an acre; that dt fendant at no time intended to sell the land to
The reply admits that defendant conveyed to plaintiff the property mentioned in the answer for the consideration of $72.50 an acre, and thereby covenanted to warrant and defend the title so conveyed, and denies each and every other allegation in the ansAver.
The folloAving special interrogatories were submitted to and answered by the jury: “Q. 1. Did Higgins as a condition of the sale to Hawe stipulate that George Wertz should have no connection with the transaction? A. Yes. ' Q. 2. If you answer ‘yes’ to the foregoing question, staff; whether Wertz, without Higgins’ knowledge, became connected with and had an interest in the transaction. A.
We think plaintiff’s assault upon the special interrogatories submitted to the jury is well grounded. No. 1 called for the finding of the jury as to whether or not defedant as a condition of the sale to plaintiff stipulated that • George Wertz should have no connection with the transaction. The allegation in the answer is: “Defendant informed plaintiff that, if there was to be any one connected with said transaction as purchaser except plaintiff alone, said offer was withdrawn,” etc. It will be seen that the question submitted to the jury was broader than the issue tendered by the answer. We do not think it can be claimed that one who lends money to a purchaser of land to enable him to make the purchase thereby becomes connected with the transaction “as purchaser.” The issue tendered by the answer was that the offer would be withdrawn if any. one besides plaintiff was interested “as purchaser;” that is, as owner. Conceding that defendant had a right to impose conditions, when he alleges in his answer
While we are impressed with the argument that, when the negotiation between plaintiff and defendant began, it was largely in the nature of banter, as contended for by defendant, the evidence is overwhelming that it soon passed beyond the stage of banter and jest. Defendant stated that farm lands were assessed too high. Plaintiff combated that statement, whereupon defendant said that he would sell his land at its assessed valuation. Plaintiff said that he would take the quarter section in dispute at that valuation, which it was conceded was $72.50 an acre. Defendant answered that he would sell it to him at that figure. When asked how long a time he would give plaintiff to raise the money, he answered that he would give him ten days. Defendant testified that, when discussing where plaintiff would raise the money, plaintiff said he thought he could get it from Wertz;, that he said, “I turned right to him, and said, ‘I cut that man out. I will have no dealing with that man, or no deal that he is connected in.’ ” This testimony is contradicted by plaintiff, and by other witnesses who were present and heard the conversation. They all say substantially that no conditions were imposed. One witness testified that, when plaintiff asked defendant how long he would give him to raise the money, defendant said ten days, “and he said he did not care where he got the money so he got it.” Another witness testified that he heard defendant say to plaintiff, “ ‘You get the money and you can have the land;’ Mr. Hawe answered him, ‘You don’t worry, I will have the money.’ * * * Hawe was
In his instructions the court charged the jury, among other things: “9. If the jury believe from the evidence that the plaintiff and defendant entered into a contract for the sale of said land as set forth in plaintiff’s petition, and the plaintiff has fully performed all {he terms and conditions of said contract, and that the defendant has without just cause or legal excuse failed to perform his part of the obligations of said contract, then your verdict should be for the plaintiff.
“10. If the jury do not so believe, or if you believe from a preponderance of the evidence that said contract was made in a jest, and without any intention on the part of either party to comply with said contract, or if you do not believe from the evidence that the minds of the parties were fully in accord as to the terms of said contract, then your verdict should be for the defendant.” Acting under these instructions, the jury returned a general verdict for the plaintiff.
Upon the question of the measure of damages in case the jury should find for the plaintiff, the court instructed the jury as follows: “8. If you find for the plaintiff in this case, the measure of plaintiff’s recovery would be the profit that plaintiff would receive by reason of said purchase of said land. That is, the plaintiff would be entitled to receive as damages the market value of the land in question less the amount that he agreed to pay for said land. The market value of said land at said time must be determined by you from the evidence.” The testimony of the witnesses on both sides placed the value of this land at that time at from $80 to $100 an acre. The lowest esti
It is evident, therefore, that the jury disregarded the evidence and the instructions of the court and arbitrarily undertook to adjust this case upon a basis of their own. They were expressly told by the court that in determining the amount of plaintiff’s damages, in case they found for plaintiff, the same “must be determined by you from the evidence,” an instruction which the jury clearly disregarded. The Law is well settled that it is the duty of a jury to find a verdict according to the law as given in the instructions of the court, and that when they clearly violate this duty, the court should set aside the verdict. Standiford v. Green & Co., 54 Neb. 10; Westinghouse Co. v. Tilden, 56 Neb. 129.
Plaintiff has assigned error on the part of the court in a number of instructions given and refused, and urges that those assignments should be passed upon for the future guidance of the trial court. We do not deem it necessary to do so, for the reason that in the light of the views herein expressed the trial court will have no difficulty in instructing the jury upon another trial. We are unable to discover any theory upon which the verdict and judgment in this case can be sustained. The transaction, in its inception, may have been an “executory” joke; but the trouble is it later seems to have become “executed;” and executed jokes ofttimes bear very real fruit.
The judgment of the district court is reversed and the cause remanded for further proceedings in harmony with this opinion.
Reversed.