15 Neb. 502 | Neb. | 1884
This is an action for an accounting between partners. It appears from the record that in the year 1878 the plaintiff and defendant entered into partnership in the law and
“This agreement, made this 21st day of April, 1881, between W. E. Stewart and W. H. Snelling. It is agreed that W. E. Stewart pay W. H. Snelling eight hundred dollars for his interest in the A. D. Wood property on corner of N and Eleventh streets, in Lincoln, paid as follows: Three hundred dollars cash in hand, and to credit Snelling’s account for one hundred dollars, and balance of four hundred dollars to be paid on the first of September next, or before if said Stewart makes sale of said property. And in the event the title should fail to said property entirely, then the said four hundred dollars shall not be paid, and he shall be liable therefor in case James Daggy, guardian, refuses to assist in perfecting the title to the same, or in case the same is not perfected by the supreme court of Nebraska, then Stewart shall not be liable for any amount, provided, that in case title is perfected and sale is not made
“ In witness whereof the parties hereto have this day set their hands and seals, the day and year first inserted.
“Willard E. Stewart, [s.]
“W. H. Snelling. [s.]
“Witness:
“Wales Frank Severance.”
Afterwards an action was brought by the guardian to set the sale aside, and in Maroh, 1882, the plaintiff entered .into an agreement with the guardian to pay an additional sum of $550 and all costs of quieting his title to said property, and further agreed that in the suit then pending a decree be entered quieting title in said minors subject to the estate in dower with lien to said Stewart for his just and equitable charges, $3,438.33. It was also agreed that there should be a re-sale of the property by the guardian, and giving the plaintiff certain privileges pending the sale. A decree was entered in conformity to the agreement, and on a re-sale of the property by the guardian, the plaintiff purchased the same at the price agreed upon, and now claims that the title under the agreement with Snelling failed, and therefore he is not liable thereon. It will be observed that the provisions of the agreement between the plaintiff and defendant are that if the title fails entirely, then the plaintiff was not to be liable.
All the testimony shows there was not an entire failure of title. The defendant was still possessed of the dower interest conveyed to him by Mrs. Wood, which, so far as this record discloses, may have been and probably was worth very much more than the amount paid and agreed to be paid by the plaintiff. This being so, the plaintiff is liable on the contract. It may well be doubted whether he was entirely disinterested in the agreement
Judgment affirmed.