55 Neb. 355 | Neb. | 1898
On September 5, 1892, the Texas Land & Cattle Company, a corporation, as party of the first part, entered into a written agreement with Victor Rylander and August Jernberg, as partners composing the firm of Jem-berg & Rylander, parties of the second part.- By the terms of the contract the parties of second part undertook for the first party to sell a large amount of real property known as the K. O. Ranch, situate in the state of Texas, on certain fixed terms and for agreed rates of compensation. In this agreement there was the following provision: “It is also understood and agreed that this contract is not assignable or transferable by the parties of the second part, and any one accepting such, assignment or transfer shall receive no rights or equities under the contract by reason of such transfer and assignment, and said party of the first part shall, at its option, be relieved of its obligations hereunder.” On February 20, 1893, the above named August Jernberg and Victor Ry-lander, as a partnership firm and as party of the first part, entered into a written contract with Ernest Bihl, Olof Zette-rlund, Jonas Adling, and Adolph Osterholm, representing the Southern Land Company, a partnership firm, as parties of the second part, by the terms of which the second - parties assumed all outstanding obligations to agents- connected with the K. 0. Ranch, and all expenses incurred or to be incurred in the handling of the K. O.
The district court found specially as follows:
“15. That by the terms of said assignment it is sought to assign the contract; that in so far as such assignment attempts thus to assign the contract it is void.
“16. That upon sufficient consideration said assignment transfers to the plaintiffs, as members of the Southern Land Company, the moneys arising as commissions earned by Jernberg & Rylander under their contract with the Texas Land & Cattle Company, and that in so far as said assignment seeks to assign said moneys it should be upheld to the interest of the plaintiff therein.”
On the theory that the prohibited assignment wa? a valid transfer of moneys already earned by Jernberg & Rylander the district court required the Texas Land & Cattle Company to account to the Southern Land Company’s individual members for such amounts as had already, or afterwards should, become due to Jernberg & Rylander as commissions on deferred payments upon sales of land already made by that firm, and required that the amounts of these commissions as they fell due
It is, however, insisted by appellees that the services rendered by them, were rendered with the knowledge of the Texas Land & Cattle Company, and notwithstanding its ignorance of the assigmnent that company equitably should be required to account as it was required by the district court. To this we quote as quite apposite the language of Cobb, C. J., in Gould v. Kendall, ■ 15 Neb. 549: “It may be claimed that the defendants having done business in the name of the plaintiffs, are estopped to deny the interest of the plaintiffs in that business. That would probably be so could the plaintiffs’ case ever reach the point at which the defendants are required to develop their defence, but the difficulty is in the inherent weakness of the plaintiffs’ case. They cannot reach the enemies’ works except through the contract, which, by reason of its illegality, is ‘no thoroughfare’ for them.”
The judgment of the district court is reversed and this action is dismissed.
Beversed and dismissed.