80 Neb. 509 | Neb. | 1908
This is an action to enforce specific performance of a contract for the conveyance.of lands in Custer county, Nebraska, and.is before this court a second time. The former opinion, entitled Parmele v. Heenan & Finlen, appears in 75 Neb. 535. After the cause was remanded upon the former hearing in this court to the district court, an amended petition was filed, alleging, among other things, that since the former trial the copartnership, of Heenan & Finlen had been dissolved, and that Daniel H. Heenan had succeeded to all rights of the'copartnership, and making Heenan in his individual capacity a joint plaintiff: with the copartnership of Heenan & Finlen. The amended petition also averred that the existence of the' defendant Plattsmouth Live Stock Company had expired on the
At the outset it may be remarked that numerous assignments of error are made that are ably and exhaustively presented in the arguments and briefs on either side, but the vieAV we have adopted will render a consideration of the most of them Unnecessary. The contract relied upon is evidenced by a series of letters passing between Daniel Heenan on one side and Thomas E. Parmele and Charles C. Parmele on the other. The substance of most of these letters is set out in the former opinion in this case. The evidence discloses that the record title to the land Avas in the name of the Plattsmouth Live Stock Company, and that Thomas E. Parmele and Charles C. Parmele Avere the last acting managers of the corporation prior to the expiration of its charter, and they became the trustees of the corporation under the provisions of section G2, ch. 16, Comp. St. 1905. The evidence also discloses that at least two other parties than the two defendant Parmeles Avere holders of stock in the corporation and beneficially interested in the land; that the plaintiff Heenan & Finlen Avas a copartnership conducting a ranch business in Custer county, and owned a large quantity of land; that the land in controversy, together with some other land of the defendants, lay Avithin the Heenan & Finlen ranch, and almost entirely surrounded by the land of Heenan & Finlen.
By reference to the letters constituting the alleged contract, it will be observed that nowhere in them is there contained a description of the land to be conveyed. The only statement relating to the location of the land is that it is in Custer county. It is no doubt true that both Heenan and the Parmeles knew and understood what land was referred to, but the contract itself does not disclose it, nor is there anything in the contract from which the land could be identified. A complete contract, binding under the statute of frauds, may be executed by means of letters passing between the parties, but such a contract, or memorandum thereof, to be valid and convey land, must either describe the land or refer to it in such a manner that, by the aid of the contract, or memorandum, one not a party to it can, by resorting to parol testimony, definitely ascertain the land intended to be conveyed. It is not .essential that the description have such particulars and tokens of identification as to render a resort to extrinsic aid entirely needless. The terms may be abstract and of a general nature, but they must be sufficient to fix and comprehend the property which is the subject of the transaction, so that with the assistance of external evidence the description, without being contradicted or added to, can be connected with and applied to the very property intended to be conveyed and to the exclusion of all other property. Ryan v. United States, 136 U. S. 68. Where a sufficient description is given in the contract, parol evidence may be resorted to in order to fit the description to the thing, but where an insufficient description is given, or where there is no description, such evidence is inadmissible. Ferguson v. Blackwell, 8 Okla. 489, 58 Pac. 647; Halsell v. Renfrow, 14 Okla. 674, 78 Pac. 118. It has been held, in Ruzicka v. Hotovy, 72 Neb. 589, that a memorandum of a contract of sale which fails to specify which quarter of a named section of land is intended, and states
By the Court: Eor -the reasons given in the foregoing opinion, the judgment of the district court is reversed and the cause remanded.
Reversed.
The facts in this case are set forth in the former opinions, Parmele v. Heenan & Finlen, 75 Neb. 535, and Heenan & Finlen v. Parmele, ante, p. 509. At the second trial amended pleadings were filed and additional evidence offered to supply the deficiencies pointed out in the first opinion.
1. The first point made in the appellants’ brief is that a partnership cannot maintain an action for specific performance of a sale of real estate, and it is contended that this action is brought by the partnership. The title of the case in the petition is “Heenan & Finlen, a copartnership, v. Thomas E. Parmele, Charles C. Parmele, Samuel H. Atwood, Guy Seivers, and the Plattsmouth Live Stock Company,” and in the body of the petition it is alleged that Heenan & Finlen is a partnership composed of Daniel H. Heenan and Thomas W. Finlen, organized for the purpose of doing business in Nebraska. With the pleading in this form there can be no question but that the action is' brought by the partnership under the statutory permission. The additional evidence produced at this trial satisfied the district court, as it does this court, that the negotiations for the land were carried on by Mr. Heenan for and in behalf of the copartnership. Whether the deed was directed to be made to the individual copartners, as he and his clerk testify, or to Heenan individually, as seems to be implied by the testimony on behalf of the defendant, is under the peculiar circumstances of this case immaterial. It seems clear that the title was to be taken for the benefit of and in behalf of the copartner
2. After this case was remanded to the district court, Daniel H. Heenan was made a party to the suit upon a showing that he had succeeded by assignment to all the rights of the copartnership, and an amended petition was filed making him a party. It is now objected that this amended petition changes the parties and the cause of action, and that no summons was served upon the. amended petition. Separate special appearances were made by the defendants, objecting to the jurisdiction of the court on that account, which were each overruled. It is contended that the original action was by the copartnership against the live stock company, while the amended petition seeks to recover the individual rights of Heenan as against the Parmeles and Atwood in their capacity as trustees of the live stock company, its charter having expired by limitation upon January 1, 1900. While under section 45 of the code the action after the dissolution of the partnership might have been continued in the same name, yet it was entirely proper for the fact of the change of interest to be sli own, and the pleadings made to correspond to the actual facts by making Heenan a party in his capacity as successor to or assignee of the rights of the copartnership. No right is claimed on the part of Heenan not derived by his succession to the interests of the partnership, hence, there is no change in the cause of action on that point.
As to the objection to the amendment seeking to charge the individual defendants as trustees of the Plattsmouth Live Stock Company, it had come to light since the former hearing that the corporate powers of the company had expired by limitation at the time the contract was made.
3. Further consideration of the evidence contained in the record convinces us that our former holding that the description of the land in the contract is too indefinite and uncertain to be susceptible of enforcement is erroneous. The evidence is clear that the oral negotiations leading up to the written correspondence referred specifically to the land in controversy which was situated within the Heenan & Finlen pasture, and that this was the identical tract which was in.the minds of the parties throughout the correspondence. Accompanying one of the letters was a warranty deed and an abstract of title to the land for the vendees’ inspection. The deed was returned to Parmele apparently without having been inspected by Mr. Heenan or any one for him, but the evidence shows that the abstract was forwarded to Streator, 111., where he resided, seen by the witness Berry, and examined by a firm of lawyers at that place for Mr. Heenan. An abstract is in the record, which is said in the plaintiff’s brief to be this abstract, but we find no proof of this fact, except certain marks which might imply this to be the fact. Berry testifies that the description of the land in the abstract sent was the same as that of the land in controversy. The testimony of both Thomas E. Parmele and Charles C. Parmele, the writers of the letters, is positive that the land described in the petition is the land referred to in the
4. The point in the case which has given' us the most concern is as to the power and authority of the Parmeles, or either of them, to act for the Plattsmouth Live Stock Company. The district court found that Charles C. Parmele “is and was the sole trustee of said Plattsmouth Live Stock Company.” The correctness of this finding is vigorously assailed. The evidence shows that the last election of officers of the corporation took place in 1892, at which time Charles E. Parmele was elected secretary. At that time five directors were elected, one of whom was Samuel H. Atwood, one of the original defendants in this case. Before the death of Charles H. Parmele, the father of Thomas E. and Charles C., who died in 1897,' he had acquired by purchase all of the stock of the corporation, except a few shares purchased from him by Atwood, which were pledged to him as security for the purchase money. No certificates of stock had ever been issued. Some time previous to the 1st of January, 1900, the date of dissolution, all the personal property of the company had been disposed of, and its only remaining assets consisted of real estate. Apparently the last act of management or control exercised over the real estate before (he sale was by Charles C. Parmele, in 1898 or 1899, when he agreed that Heenan & Finlen might use the land in controversy if they paid for the use of it. Charles H. Parmele left as Ms children and heirs, Thomas E. Parmele,
We conclude that the finding of the district court as to the facts is sustained by the evidence, and it will not be disturbed.
The former judgment of the court is vacated and set aside, and the judgment of the district court is affirmed.
Judgment accordingly.