46 Neb. 893 | Neb. | 1896
Plaintiff in error sued the defendant in error for the recovery of the sum of $50. The averments of the petition as to plaintiff’s cause of action were as follows: “During the month of January, 1890, the defendant entered into a written contract with the plaintiff whereby he agreed to pay for the purpose of assisting the plaintiff to erect certain accommodations for the Nebraska Agricultural Society, on the grounds of the plaintiff, the sum of fifty dollars ($50), on condition that the state fair should be located upon the said grounds at the said city of Lincoln for the five years beginning 1890, and that the said sum was to be paid upon the location of the state fair at said place.” Full performance of the condition upon which this subscription w^s to be paid, as well .as defendant’s refusal upon demand to pay
Before noticing the affirmative matter pleaded in the answer it is proper to say that the defendant in error cannot now insist that the terms of the contract of subscription, by reason of not being set out in the record, cannot be known to this court, for, having admitted that defendant was to pay as alleged in the petition, we must assume that the terms had been therein fully as well as accurately stated. So, too, of the performance. It was admitted in the answer that the state fair had been located as alleged, and this is the only condition precedent to be found in the contract as it was described in the petition. There were, therefore, admissions in the answer which described the conditions upon which the defendant in error was to become liable, which disclosed the full performance of those conditions necessary to fix the liability of the defendant, and the failure of the defendant to make payment in accordance with his said agreement. By way of the affirmative defense it was averred, however, that “the plaintiff, through one John Sheedy, who was then and there its duly authorized agent, promised and agreed to and with the defendant to issue and execute to the defendant $50 of stock of the said corporation [plaintiff], and that defendant, in consideration thereof, signed said subscription, and that said promise to issue and deliver said stock to the defendant was the sole and only consideration of said subscription; and the defendant further alleges that, although often requested, the defendant has failed and refused to execute or deliver said stock to the defendant, and that the consideration of said subscription has wholly failed.” In another paragraph
Reversed.