No. 7020 | Neb. | Feb 3, 1897
On the 5th of May, 1891, Lobeek, in exchange for a stock of hardware, transferred to Duke, as part of the consideration, stock in a corporation known as the Omaha Hardware Company, of the par value of $5,000. At the same time Lobeek executed to Duke the following instrument:
“For value received, I hereby guarantee that the shares of stock this day assigned to Elbert T. Duke, known and designated as numbers 78, 79, 80, 81, and 82 (ten shares each), inclusive, of the Omaha Hardware Company, can be sold at and for the sum of $3,000 within one year from the date hereof. The said E. T. Duke binding himself not to sell the same within said year without my consent, in writing, for less than $3,000, and in the event of such sale without such written consent he shall lose the difference between the amount of such sale and the said $3,000, and in the event of a failure to sell the same for at least $3,000 by the end of said year, I hereby agree te make good any difference arising from the sale thereof, the said Duke hereby agreeing to use due diligence in. procuring a larger price for the same.
“Omaha, May 5, 1891. C. O. Lobecic
“Witness:
“Jas. W. Carr.”
Duke not having sold the stock within a year, proceeded, after the expiration of that time, to offer it at public auction, and thereby sold it for $750. He then
At the request of the plaintiff the court instructed the jury that “the agreement between the parties had reference to a sale of the stock for money, and Mr. Duke was not required to use due diligence or make any efforts to exchange the stock for property, and he would have no right to make any trade of that character without making some new arrangement with Lobeck.” It is claimed that this instruction is erroneous, as conflicting with other instructions given, whereby the case was submitted to the jury on the theory that the plaintiff, in ■order to recover, was bound to prove that he had used due •diligence within the year to effect a sale. For the purpose of ascertaining the value of the stock and the practicability of making a sale during the year, considerable testimony had been introduced as to actual transactions between other parties, and there was evidence tending to show that some stock had been transferred within the .year at an agreed valuation sufficient to meet the terms of this guaranty, but that such transactions were in the way of exchanges for real estate 'and other property, and were not cash sales. It is a well known fact that in exchanging one species of property for another the parties to the exchange are not unlikely to place a valuation upon their respective holdings beyond their cash value, and beyond what the parties themselves consider to be their value. We think, therefore, this instruction, in view of the evidence, was a proper caution to the jury, and in nowise conflicted with the other instructions requiring due diligence to procure an actual sale.
The court also, at plaintiff’s request, instructed that-“due diligence in trying to dispose of the stock did not
The court refused an instruction requested by the defendant to the effect that if the plaintiff failed to list his stock in the Rands of those agencies wkhich made it a business to deal for others in such matters, or to properly advertise the same in the usual mediums therefor, suck failure would be negligence on his part. This instruction was properly refused. The court had correctly defined the rule of diligence and what that rule required, and whether or not the plaintiff had satisfied it were questions of fact under the circumstances of this particular case. They were not questions of law. Therefore the court properly refused to enter upon the domain of the jury.
The court also refused to instruct that it was the plaint
Finally, it is claimed that the evidence does not sustain the verdict. It would be useless to review the evidence. We are satisfied that it was sufficient.
Affirmed.