Allen v. Hall
| Decision Date | 19 March 1902 |
| Docket Number | 11,248 |
| Citation | 89 N.W. 803,64 Neb. 256 |
| Parties | GEORGE ALLEN ET AL. v. JOHN H. HALL. [*] |
| Court | Nebraska Supreme Court |
ERROR from the district court for Scott's Bluff county. Tried below before GRIMES, J. Affirmed.
AFFIRMED.
T. M Morrow, for plaintiffs in error.
F. A Wright, contra.
BARNES C. OLDHAM and POUND, CC. concur.
This action was commenced by the defendant in error, who will hereafter be called "defendant," in the district court for Scott's Bluff county to recover the sum of $ 107.20, alleged to be the rental value of certain land leased by the defendant to the plaintiffs in error during the year 1897. The plaintiffs, in their answer, attempted to plead three defenses, as follows: First, they admitted that they rented and cultivated the land described in defendant's petition, but alleged that they only agreed to pay whatever they thought proper; that the land was wild and uncultivated; that it took an extra amount of labor to cultivate it and raise the crops thereon; and that therefore there was nothing due to the defendant; second, that subsequent to the time they leased the premises they entered into a verbal agreement with defendant that if they would procure a purchaser for the land at a stipulated price the defendant would give them any interest he might have in the crop; that they did procure a purchaser, who bought the land at the price mentioned, and that thereupon all the interest defendant had in the crop vested in them, and that they appropriated the same to their own use under said agreement, and that defendant was thereby estopped from asserting any ownership thereto; third, that while the crops were growing on the land defendant sold and conveyed it by warranty deed to another, and thereby conveyed away all his right, title and interest in said crop, if he ever had any, to said third person, and that he had no interest therein at the time of bringing his action. The reply to this answer was a general denial. The case was tried, and the jury returned a verdict for the defendant herein for the sum of $ 40. A motion for a new trial was overruled, judgment was entered on the verdict, and the plaintiffs in error bring the case to this court for review.
1. They contend that the court erred in striking out and rejecting all of the evidence in relation to the second defense, to wit, the defense of their verbal contract to act as agents or brokers to procure a purchaser for the land, and have, as compensation therefor, all of the defendant's interest in the crop. The record shows that the court heard all of the evidence on this question, and afterwards struck the same out and refused to submit that question to the jury. At the time the alleged verbal contract was entered into section 74 of chapter 73 of the Compiled Statutes was in force. That section is as follows: "Every contract for the sale of lands, between the owner thereof, and any broker or agent employed to sell the same, shall be void, unless the contract is in writing and subscribed by the owner of the land and the broker or agent, and such contract shall describe the land to be sold, and set forth the compensation to be allowed by the owner in case of sale by the broker or agent." Plaintiffs in error in their argument admit the force of this statute, and concede that, if the contract was not fully executed at the time the action was commenced, they could not recover thereon. They contend, however, that the contract was (to use their language) fully executed, because they had possession of the defendant's portion of the crop; that having such possession, it was not necessary for the defendant to deliver it to them, and therefore they paid themselves, though contrary to the defendant's wishes, and the contract became fully executed. The fallacy of this position is that the plaintiff's...
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