ERROR
from the district court of Lancaster county. Tried below
before TIBBETS, J.
AFFIRMED.
J. C
Crooker and Robert Ryan, for plaintiff in error, contending
that the subscription was without consideration and void
cited: Livingston v. Rogers, 1 Cai. Cas. [N. Y.]
583; Walton v. Walton, 70 Ill. 142; Pearson v.
Pearson, 7 Johns. [N. Y.], 26*; Grover v.
Grover, 24 Pick. [Mass.], 261; Chitty, Contracts [9th
Am. ed.], pp. 53-55; 1 Parsons, Contracts, pp. 234, 475;
Klosterman v. Olcott, 27 Neb. 685.
W. M.
Morning, contra:
Where
several persons promise to contribute to a common object
desired by all, the promise of each is a good consideration
for the promise of the others, and can be enforced by suit
when the corporation or person to whom the subscription runs
has incurred obligations on the faith of such subscriptions,
and has complied with the conditions upon which they were
made. (Fremont Ferry & Bridge Co. v. Fuhrman, 8 Neb.
103; Security State Bank v. Raine, 31 Neb. 517;
Hale v. Ripp, 32 Neb. 263; Trustees of Methodist
Episcopal Church of Illinois v. Garvey, 53 Ill. 401;
McClure v. Wilson, 43 Ill. 356; George v.
Harris, 4 N. H., 535; Philomath College v. Hartless,
6 Ore., 158; Barnes v. Perine, 12 N.Y. 18;
M'Auley v. Billenger, 20 Johns. [N. Y.], *89;
Thompson v. Mercer County, 40 Ill. 379; McDonald
v. Gray, 11 Iowa 508; Petty v. Trustees of Church of
Christ, 95 Ind. 278; Galt's Executor v. Swain, 9
Gratt. [Va.], 633; Cumberland V. R. Co. v. Baab, 36 Am.
Dec. [Pa.], 132.)
HARRISON,
J. RYAN, C., took no part in the decision.
HARRISON
J.
On the
7th day of April, 1890, the plaintiff (defendant in error
here) filed in the district court of Lancaster county the
following petition:
"Comes now the plaintiff and for his cause of
action against said defendant says: That on or about the 22d
day of November, 1887, the defendant, among others, promised
and agreed in writing to pay to this plaintiff the sum of $
25 for the location of thirteen acres of land for and
erecting thereon a depot and switch grounds for the Missouri
Pacific Railroad Company, at and near the home of said
defendant in Lancaster county, Nebraska, which agreement was
signed by the said defendant, the consideration thereof being
the location of and erecting thereon at said depot or switch
grounds near the home of defendant, and that this plaintiff
should deed said ground, without price or payment thereof, to
the said railroad company, which this plaintiff did, the said
depot and switch grounds were located thereon, but the said
defendant, although often requested, has failed and refused
and neglected to pay said $ 25.
"Wherefore
said plaintiff prays judgment against said defendant for $
25, together with interest thereon at seven per cent per
annum from said 22d day of November, 1887, and costs of this
action."
And
afterwards the defendant (plaintiff in error in this court)
filed an answer as follows:
"The
defendant, in answer to said plaintiff's petition, denies
that on or about the 22d day of November, 1887, or at any
other time, that he promised and agreed in writing to pay the
plaintiff the sum of $ 25 for the location of thirteen acres
of land for the erection thereon a depot and switch grounds
for the Missouri Pacific Railroad Company at or near his
home, or at any other place in Lancaster county, Nebraska.
"2. And the defendant also denies that any agreement was
ever signed by him, the consideration thereof being for the
location of and erection thereon a depot or switch grounds
near the home of the defendant; and also denies that in
consideration thereof that the plaintiff should deed said
railroad company, and which the plaintiff did so deed, etc.
"3. But this defendant avers that the
plaintiff did, for his own purpose and interest, convey
certain lands to said railroad company for depot and switch
purposes, and for his own interest and benefit, by laying out
thereon a town site and plat, thereby making great profit.
This defendant denies he ever, by himself or with others,
promised and agreed in writing to pay the plaintiff the sum
of $ 25 for the location of thirteen acres of land for and
erecting thereon a depot and switch grounds for the Missouri
Pacific Railroad Company at any place whatever.
"4.
Defendant denies that the plaintiff ever made any conveyance
to the Missouri Pacific Railroad Company of any land
whatever, but he avers the fact to be that the plaintiff did
propose to said company that if said company would locate a
station on the plaintiff's farm, the plaintiff would give
the said company a deed of the necessary depot grounds and
for switch purposes, and that thereby the plaintiff might lay
out a town site, which proposition was accepted by said
company, and a station was established on the plaintiff's
farm, called Sprague, by reason whereof the plaintiff has
been greatly benefited and his other lands have been enhanced
a hundred-fold, and this defendant is in nowise benefited or
profited thereby.
"5.
Further answering, the defendant denies making or signing an
agreement to pay $ 25, or any other sum whatever payable to
the plaintiff for any purpose or cause whatever, and denies
each and every other material allegation not hitherto fully
answered or denied."
To
which defendant in error replied, denying all new matter
contained in the answer. A trial of the issues to the court
and a jury resulted in a verdict for the plaintiff Buel. A
motion for a new trial was filed for Armann, and on hearing
was by the court overruled and judgment rendered for Buel on
the verdict and in accordance with its findings, to reverse
which Armann brings the case here on petition in error.
The fourth paragraph of the motion for a new trial
reads as follows: "The court erred in overruling the
exceptions of the defendant to the first, second, third
fourth, fifth, sixth, and seventh instructions given by the
court on its own motion;" and the fourth assignment of
error in the petition was thus stated: "The court erred
in overruling the exceptions of the defendant to the first,
second, third, fourth, fifth, sixth, and seventh instructions
given by the court on its own motion." By an examination
of the instructions contained in the record as numbered
above, we are satisfied that nearly, if not all, of them,
when considered together, are free from error, and this
brings this assignment of error within the rule announced by
this court in Hiatt v. Kinkaid, 40 Neb. 178, 58 N.W.
700, where it was held: "An assignment of error as to
the giving en masse of certain instructions will be
considered no further than to ascertain that any one of such
instructions was properly given." See, also,
McDonald v. Bowman, 40 Neb. 269, 58 N.W. 704, and
Jenkins v. Mitchell, 40 Neb. 664, 59 N.W. 90, in
which the above doctrine was followed. The exceptions to the...
