33 Neb. 440 | Neb. | 1891
This action was brought in the district court of Douglas county by the defendants in error against the plaintiff in error to recover the sum of $2,000, with interest frgm the 23d day of December, 1886, and costs.
On the trial of the cause the jury returned a verdict in favor of the defendants in erlor and against the plaintiff in error for. the sum of $2,468, and a motion for a new trial having been overruled, judgment was entered on the verdict.
It is alleged, in substance, in the petition that on the 23d day of December, 1886, the plaintiffs below were the owners of the east half of the southeast quarter of the southeast quarter of section 9, town 14, range 13 east, in Douglas county, Nebraska, and that on that day the defendant below, R. C. Patterson, and one Jonas R. Harris purchased of them for $20,000 said tract of land. Patterson contracted for the undivided one-tliird thereof and agreed to pay one-third of the purchase money, and Harris contracted for the undivided two-thirds thereof and agreed to pay two-thirds of the purchase money, of which $6,000 were to be paid in cash, $3,000 in notes of $1,000 each, due in one, two, and three years, and $11,000 of mortgage incumbrance on the land to Morris Morrison, to be assumed by the purchasers. That to “bind the bargain” R. C. Patterson gave his check for $300 and J. R. Harris his check for $200 to the plaintiffs below; that on December 23, 1886, plaintiffs executed and delivered to Patterson and Harris a deed to said real estate, con
A demurrer was interposed to the plaintiffs’ petition, which was overruled.
An answer was then filed by Patterson denying that on December 23, 1886, or at any other time, an agreement was entered into between him í n 1 plaintiffs that in consideration of the checks mentioned in the petition, to-wit, the check of $300 and the check of $1,700, being returned to him by plaintiffs he would reconvey to plaint
He further alleges that when the said checks mentioned in petition, to-wit, one of $300 and one of $1,700, were executed by him, he delivered them to William E. Hawley; that the $300 check was made payable to the order of William E. Hawley, and the $1,700 was made payable, at the request of William E. Hawley, to the order of one. Morris Morrison; that after the deed conveying said real estate to him and Harris had been delivered by William E. Hawley, and said checks had been delivered by him to said Hawley, he, Hawley, soon thereafter came to him^ having the two checks in his possession, and the indorsement of Morris Morrison on the $1,700 check, and asked him to cash them; that he at first refused to cash them,
Plaintiffs replied by general denial.
The plaintiff in error contends that the gravamen of the action is the breach of a parol contract for the sale and conveyance of real estate, and therefore the contract cannot be enforced. It is evident, however, that the plaintiff, in error is mistaken. If the allegations of the petition are true, the plaintiff in error received the consideration for certain real estate which he had agreed orally to convey to the defendants in error, but after having received such consideration he retained the same and refused to perform the contract. This he cannot do. He must convey the land or return the consideration.
The plaintiff in error contends that he cashed the checks in question and he accounts for his .possession of them in that way. His explanation is not very satisfactory, and in any event was testimony to be submitted to the jury. In our view the evidence fully warrants the verdict.
This being an action to recover the money paid for the' land, it is not material whether the plaintiff in error knew of the interest of Archer and Sobotker in the contract or not.
In his opening address to the jury the attorney for the defendants in error cast some reflections upon the plaintiff in error. Objections were promptly made and the court required the attorney to avoid personal remarks. We do not care to copy the language used and thus make a permanent record of what was said in the heat of argument.
Affirmed.