| Neb. | Oct 15, 1877
I. The action in the court below was commenced against the plaintiff in error jointly with Eugene Reed and Lucius F. Reed, as members of the firm of Reed Bro’s. Issue being joined the case proceeded to tr'al, when it was discovered that the transaction constituting the subject of the complaint was not had with the partnership, but with William H. Reed alone. The court, on motion, permitted an amended petition to be filed, conforming to this view of the case, upon which issue was joined, and the case tried. The allowing of this amendment is the first ground of error to be' noticed.
This amendment was clearly within the discretion of the court, and was properly allowed. Section 144 of the code of civil procedure covers a case of this kind. By it the court is authorized: “Either before or after judgment, in furtherance of justice, * * * * to amend any process, pleading, or proceeding by striking out the name of cmy farty, or by correcting a mistake in the name of the party, or by inserting other allegations
II. The object of the action was the recovery of a balance of the consideration alleged to be due from the plaintiff in error for the sale of a farm. The answer admits the conveyance of the farm, but alleges that the agreed consideration, in addition to the payment of an incumbrance of about $350, concerning which there is no dispute, was his agreement to purchase, for the defendant in error, an undivided one-third part of about five acres of land in Seward county, known as the “ West Mills property,” in which the plaintiff in error already owned an interest, and which they were to improve and operate together.
Although it is denied by the reply, there is some testimony tending to prove that the defendant in error was to take an interest in the West Mills property in exchange for his farm, but whether it was to have been a one-third, or a one-half interest, it is impossible from the testimony to determine. The plaintiff in error swears it was a one-third, while the defendant is equally positive that it was a one-half interest. The defendant denies most positively that he was under any obligation whatever to take the mill property, and, in the conflicting state of the testimony, it„ is quite uncertain whether he was or not.
However, from the fact that when the plaintiff in error received the conveyance of the farm he did not own the interest in the West Mills property, which he says he was to give in exchange, and that, when a long time afterwards, he obtained the title, he took it in his own name, and at no time offered or showed the least disposition to transfer it to the defendant in error, and has finally put it out of his power to do so by conveying the
As the case stood before the jury, even if we give the fullest credit to the plaintiff’s testimony, he was in the attitude of having obtained from the defendant a farm worth at least twelve hundred dollars, for which he had paid only about $350, leaving the balance, together with quite an amount of interest, wholly unprovided for. If the balance of the consideration were payable, as he asserts in his answer, and he expected to insist upon that mode of payment, he should have evinced a disposition to hand it over instead of first neglecting and finally putting it out of his power to do so. The objection that the verdict is not supported by the evidence cannot be sustained.
III. At the time of the conveyance of the farm, and for awhile before, the title was in Joseph Beardsley, a brother of the defendant, it having been placed there merely for convenience of transfer in case of sale. It is assigned as one of the grounds of error that the court excluded from the jury a conversation that took place between the plaintiff and Joseph Beardsley when he executed the deed in regard to the consideration for which it was made. This conversation was clearly inadmissible. Joseph was not the agent of the defendant in error in making the contract of sale; he was merely the trustee, with no power but the single one of holding the legal title, and of transferring it to whomsoever his brother should direct. Under these circumstances there is no rule by which his declarations, in the defendant’s absence, respecting the consideration which the vendee was to pay, would be admissible. It was not error to exclude this testimony.
IV. It is also claimed that the court erred in one of
In a case like this the true measure of damages is the value of the property conveyed: therefore the instruction was not technically correct. But, under the testimony, the plaintiff in error has no reason to complain. There was testimony to show that the farm was put in at $1,200, and there was not a syllable to show that its actual value was less than that. Indeed, there was no testimony by which the jury would have been justified in reducing the damages below the amount which they returned. The only cause for complaint is with the defendant, in not being allowed interest on the $850, to which he was clearly entitled; but he does not complain. Bassett v. Bassett, 55 Me., 127.
Y. It is claimed further that there was error in the refusal of the court to give two instructions requested for the plaintiff. We think that these requests, although abstractly correct, were based- upon an entire misconception of the effect of the testimony. It was not shown that Beardsley had given notice that he would not accept a deed of the mill property. Neither was there any disposition shown on the part of the plaintiff at any time to convey it to him, but on the contrary, after acquiring control of the property, he treated it as his own until finally he conveyéd it to a stranger. Of these facts there was no dispute. The two instructions were rightly refused. For these reasons the judgment of the court below must be affirmed.
Judgment affirmed.