93 Neb. 469 | Neb. | 1913
This action was instituted in the district court for Johnson county to recover a sum alleged to he due on an express contract. The court directed a verdict in favor of defendants, and from a judgment thereon plaintiff appeals.
The issues presented by the pleadings, so far as it is necessary to consider them here, are substantially as follows: Matteus Panko died in Otoe county, leaving his widow, defendant Maria Panko, his sons, the defendants Matteus, Godfrey and Term an, and his daughters, the plaintiff and Minnie and Pauline Harms, wives respec
Before plaintiff would sign the above instrument, she demanded security that the $4,000 would be paid to her as agreed. Thereupon, in order to induce her to enter into the agreement, the defendants Harms, in whom plaintiff seems to have had great confidence, agreed to secure the payment of the money stipulated, in writing, as follows: “We, the undersigned jointly and severally agree that we will be surety for the payment of the above consideration upon the completion of the probation of the estate of Matteus Panko, deceased. Henry Harms. Harm Harms.”
In compliance with the agreement, and in consideration thereof, plaintiff withdrew her objections to the probate of the will, and the same was'admitted to probate as the last will of her father, and defendant Maria became the owner of all the estate, which the stipulation shows amounted to about $30,000. Plaintiff prays judgment for the $4,000, with interest from the date of the contract. The defendant Maria Panko denies that plaintiff had any grounds for objecting to the probate of the will; that any agreement was made between plaintiff and any of the defendants to which she was a party, or that she procured the written waiver set out in the contract; and alleges that plaintiff withdrew her objections to the allowance of the will on her own motion, and without any inducement on the part of the answering defendants. The main defense relied upon by all of the defendants, however, is a prior adjudication between the parties. Upon this point the answers of the defendants Panko allege that about October 6, 1906, the defendant Maria filed her petition asking that the estate be finally closed and the terms of the will carried out. When this petition was filed, Pauline Harms, wife of defendant Henry Harms, and others of the heirs of decedent filed their objections to the allowance of the petition for discharge, and filed a petition in the county court, setting out a contract of settlement with
Upon the issues thus joined, a trial was entered upon to the district court and a jury. At the conclusion of the trial the court directed a verdict in favor of defendants, and each of them, upon the following grounds, as shown in the record: “Gentlemen of the jury: * * * I have heard the arguments on the part of counsel, and have con-eluded to make a disposition of this case myself without your assistance. * * * I reached the conclusion that the court in Otoe county and the supreme court liavé tried
Plaintiff urges three principal grounds for reversal: (1) That the question as to whether plaintiff was a party to the proceedings in the district court for Otoe county and in this court should have been submitted to the jury. (2) That the question as to whether or not the contract set out in her petition was a binding contract between plaintiff and all of the defendants was conclusively established. (3) That, even if it should be held that plaintiff cannot recover as against the defendants Panto, she is still entitled to a judgment against the defendants Harms upon the indorsement on the contract signed by them. We will consider these assignments in the order named.
1. Should the question as to whether plaintiff was a party to the proceedings in the district court for Otoe county have been submitted to the jury; or, to state it another way, did the evidence so clearly and conclusively show that she was a party to that suit that the court could determine the question as a matter of law? It is undisputed that, when the petition was filed in the county court in that proceeding by Pauline Harms and others, it expressly alleged that Anna Lipps (plaintiff here) refused to join in their petition, and it is not claimed that she ever participated in that matter in the county court. When the case was appealed to the district court, Mrs. Harms and her associates filed their petition in that court,
2. It is equally clear that the question as to whether or not the contract set out in plaintiff’s petition was a binding contract should, at least, have been submitted to the jury. Indeed, there is much force in the contention of her counsel that her contract was conclusively established by the evidence. The testimony of plaintiff and her husband is that the contract was presented to them by the defendants Harms; that it was stated to her that an attempt was-being made to settle the estate of her father; that $3,000 was first suggested, Avhich sum. Mrs. Lipps refused to consider. Thereupon, $4,000 Avas named. This amount she agreed to accept, provided they, the defendants Harms, would say it was all right. It is apparent that she did not have confidence in her mother and brothers, but did have confidence in the defendants Harms; that, as an inducement to her to sign the contract, they made and signed the indorsement upon the back of it.
Coming now to the interview itself, it clearly appears from the testimony that the Reverend Beckman read the contract over to the defendants in English, and again in German. It was read in German for the benefit of defendant Maria Panko, who understood German much better than she did English. Reverend Beckman testifies, and in this he is corroborated by defendants Harms, that he explained the contract in both English and German, and then asked them all if they understood it and would agree to abide by it; that they all, including defendant Maria Panko, answered in the affirmative. Defendant Henry Harms testified that; after the paper had been explained to them all, he suggested to Mr. Beckman that a contract in writing should be drawn up and signed by all of the parties, but that Mr. Beckman said: “He knew the family as well as I did or better, and we’d all better' stick to
3. Are the defendants Harms liable under their Avritten indorsement upon the contract in suit, regardless of the question as to whether or not sufficient Avas done by the defendants Panko to bind them? Again we say this question should, at least, have been submitted to the jury. The evidence shows that they were the parties who induced Mrs: Lipps to sign the contract set out in her petition, under which she agreed to accept $4,000, not only as in full of her share of the estate of her father, but also in full of any claim she might have as an heir of her mother upon her death. They were interested in having her make the contract. Their wives would be beneficiaries under it, and through their wives they -would indirectly be beneficiaries also. They knew when they induced her to sign the contract that it would bind her to withdraw her objections to the probate of the will. They were conducting negotiations with Maria Panko and the brothers of their wives. They expected that, if Mrs. Lipps withdrew her contest and permitted the will to be probated, their wives would at once obtain a substantial portion of the estate of their
We hold, therefore, that upon all three of the points urged by plaintiff, and above discussed, the district court erred in directing a verdict in favor of the defendants.
The judgment is therefore reversed and the cause remanded for further proceedings in harmony with this opinion.
Reversed.