50 Neb. 218 | Neb. | 1897
In the district, court of Douglas county there was in this case a verdict and judgment in the sum of $2,123.67 in favor of the plaintiffs in that court. By error proceedings in this court the defendants seek a reversal of this judgment. In describing the history of this case and discussing the principles involved we shall retain the designation of the parties as above given.
“This agreement, entered into by and between Charles*221 Ogclen of the first part and the People’s Mammoth Installment Company of the second part, witnesseth: That for and in consideration of the sum of $300, to be paid by the said second parties, or either of them, to the said first party, the said first party agrees to do all the law business as attorney and counselor at law for the said second parties for a period commencing on the first of May, A. D. 1892, and terminating on the first day of May, 1893. It is agreed that said amount shall be paid in equal installments of seventy-five dollars ($75.00) every three months included in said period, and that this contract is considered to be one of entirety, and that in consideration of said first party doing all of said legal work for said second parties at such reduced rate, that the whole of said sum shall be considered earned during any period of said agreement should said parties of the second part fail to perform any of the covenants by them to be performed herein, or should they, or either of them, desire to abrogate this contract. In witness whereof, we have hereunto set our hands this second day of May, A. D. 1892.
“Challes Ogden.”
It was alleged in the answer that the existence of the above contract was known to Mr. West, of the firm of Ogden & West, during the time set forth in the petition, and that said corporation and the defendant, as its president and agent, -and either of them, during said time, did not employ said firm of Ogden & West to transact any law business for them, or any one of them. Following the above described averments in the answer was this language: “These defendants further show that the legal services and consultations set forth in said petition, and sued on therein as the services of Ogden & West, were rendered in and about a suit wherein Samuel Rosenthal was named as plaintiff and the People’s Mammoth Installment Company, together with these defendants, were named as defendants, and' were such legal services as said Ogden was bound to render and perform under and by virtue of such contract of service, and not such
It is argued that as there were involved the personal rights of stockholders, and the rights of the corporation as such, it would have been impossible for the jury to draw the proper distinction, therefore (proposition 1) the construction of the legal effect of the contract belonged to the court. In (Coquillard v. Hovey, 23 Neb., 622, it was. said: “As we understand the rule for the construction of contracts, it is that if a contract is to be construed by reference to its terms alone, and without calling in the aid of extrinsic facts and circumstances, it is the duty of the court to interpret it. But if the construction must depend upon proof of other and extrinsic facts, then those questions of fact should be submitted to the jury, under proper instructions from the court (Begg v. Forbes, 30 Eng. Law & Eq., 508; Etting v. United States Bank, 11 Wheat. [U. S.], 74; First Nat. Bank of Springfield, Illinois, v. Dana, 79 N. Y., 108; Edelman v. Yeasel, 27 Pa. St., 26.” The province of the court with reference to the construction of contracts is sufficiently indicated by the above language, and the principle involved was recognized in Rosewater v. Hoffman, 24 Neb., 222, and again invoked in Simms v. Summers, 39 Neb., 781. The theory of plaintiffs was that they were specially employed by the Rosenthals, independently of the above written contract, and solely under that employment they were entitled to compensation. The defense was that there was no such special employment, but that the services were rendered for the company pursuant to the provisions of said written contract, and that whatever was done for the Rosenthals.
In the presentation of proofs by defendants it was necessary to introduce'the written contract, for it was the best evidence that one of the plaintiffs had been employed by the People’s Mammoth Installment Company to render services of the same character as these for which compensation was claimed, during the period within which they were rendered and for a stipulated compensation much less than that sued for. The fact that this evidence might require to be supplemented with testimony that there was no other or further employment rendered it none the less competent. Without the written contract, the testimony that there was no employment other than was provided in said written contract would have fallen far short of establishing the defense pleaded. It was, therefore, not a question of the interpretation of this written agreement by reference to its own terms alone, without calling in the aid of extrinsic facts and circumstances, but the construction and application were dependent upon proof of other and extrinsic facts, therefore the written contract should have been submitted to the jury, in connection with other competent ■evidence, under the instructions of the court.
Counsel for Ogden & West seek to avoid the force of this reasoning by observing that at any rate there was no exception to the instruction given which embodied the law of the case. The exclusion of the written contract left the defense so necessarily incomplete that exceptions to instructions given or to the refusal to instruct could not supply the deficiency. The failure to take an exception to the giving or refusal of an instruction, therefore, in no way operated to waive the exception already well. taken as to the ruling in exclusion of the written con
For the error pointed out the judgment of the district court is reversed and this cause is remanded for further proceedings, not inconsistent with the views herein expressed.
Reversed and remanded.