Bee Bldg. Co. v. Weber Gas & Gasoline Engine Co.

• Decision Date: 10 March 1910
• Docket Number: No. 15,941.,15,941.
• Citation: 86 Neb. 326,125 N.W. 518
• Court: Nebraska Supreme Court
• Parties: BEE BLDG. CO. v. WEBER GAS & GASOLINE ENGINE CO. ET AL.

86 Neb. 326

125 N.W. 518

BEE BLDG. CO.

v.WEBER GAS & GASOLINE ENGINE CO. ET AL.

No. 15,941.

Supreme Court of Nebraska.

March 10, 1910.

Syllabus by the Court.

The defense that a written instrument was executed and delivered under a mistake of fact must be pleaded specially; it cannot be proved under a general denial of the allegation of the execution and delivery of the writing.

If a material fact is alleged in the pleadings, and proved without contradiction by the evidence, it is the duty of the court to so instruct the jury.

Appeal from District Court, Douglas County; Sears, Judge.

Action by the Bee Building Company against the Weber Gas & Gasoline Engine Company and others. Judgment for plaintiff, and the Atlas Oil Company and others appeal. Affirmed.

Hugh A. Myers, for appellants.

W. J. Connell and Walter P. Thomas, for appellee.

SEDGWICK, J.

In March, 1908, Mr. W. A. Eddy was the representative of the Atlas Oil Company in Omaha, and one Smith represented the Weber Gas & Gasoline Engine Company at that place. On the 28th of March of that year Mr. Eddy and Mr. Smith executed a contract of lease with the plaintiff, whereby the plaintiff leased a certain building in Omaha for the term of one year for the agreed rental of $100 per month. This lease was signed by Mr. Smith as “Mgr. Weber Gas & Gasoline Engine Co.,” and was signed by Mr. Eddy individually. It also recites that the Weber Gas & Gasoline Company and W. A. Eddy are the lessees. The building was occupied and used by the Weber Gas & Gasoline Company and the Atlas Oil Company and other parties. Eight hundred dollars of the rent was paid, and this action was brought by the plaintiff to recover the remaining $400 of the year's rent, with interest thereon. Both of the above-named companies were made defendants, as was also Weston A. Eddy, who signed the lease, as before stated. There was no service on the Weber Company, and at the close of the evidence the plaintiff dismissed the action as to Mr. Eddy. The petition alleges that the plaintiff and the Weber Gas & Gasoline Engine Company and Weston A. Eddy entered into a contract of lease whereby the Weber Company and “the said W. A. Eddy, as appears on the face of said lease, did rent and lease” the building, etc. It sets out the terms of the lease and the payments, as above stated, and contains the allegation that “with reference to the name of said W. A. Eddy, as appearing in said lease, and with reference to the said signature of W. A. Eddy, the said plaintiff alleges that said lease was intended to be made to and taken by, and in fact was made to and taken by the said Atlas Oil Company, a corporation which was represented by the said W. A. Eddy, in said Omaha, as its general agent and manager, and the signature of W. A. Eddy to said lease was intended to be and was in fact his signature in his representative capacity of agent and manager of the said Atlas Oil Company,” and then alleges that two days after the making of the lease the Atlas Oil Company, by its secretary and manager, A. E. Roblee, at the general office of said Atlas Oil Company, ratified and approved the making of the lease for and on behalf of the said Atlas Oil Company, and notified the plaintiff in writing that the said lease was assumed by said Atlas Oil Company, and that Mr. Eddy was the Western representative of said company, and had notified them that he had entered into a lease “for said building, which was then occupied by said company.” The answer alleges that the lease with the plaintiff was entered into with the Weber Company and Mr. Eddy, and that Mr. Eddy “did rent and lease from said plaintiff” the building described in the petition. The terms of the lease are stated as in the petition. It denied specifically that “with reference to the name of W. A. Eddy appearing in said lease and with reference to said signature of W. A. Eddy, that said lease was in any way intended to be made to, and was taken by the said Atlas Oil Company,” and that the lease was taken by W. A. Eddy in his individual capacity, and that the Atlas Oil Company thereafter became a subtenant of Mr. Eddy. The allegations of the petition that the Atlas Oil Company ratified and assumed the lease are answered only by a general denial. The answer admits that the Atlas Oil Company occupied the building with the Weber Company for the full period but denies that it occupied said building under said lease, and alleges that it occupied and used the building only as a subtenant of Mr. Eddy. The answer then contains the allegation that the full sum of $1,200 was paid to the plaintiff on account of the said lease “by the said W. A. Eddy and the Weber Gas & Gasoline Engine Company,” and denies specifically that there is anything due to the plaintiff. It also alleges that Mr. Eddy gave his personal note for the sum of $400 to the plaintiff, which was the balance due upon the lease, and received therefor a receipt in full and pleads Mr. Eddy's discharge in bankruptcy as a complete defense. It appeared to be necessary to thus fully set out the condition of the pleadings in order to present the precise points in controversy between the parties.

1. Upon the trial of the case the plaintiff introduced in evidence a letter, purporting to come from the Atlas Oil Company, which is as follows: “The Atlas Oil Company, Miners' Lard and Lubricating. Office, 1050 Rose Bldg. Works, Junction C. & P. & N. Y., P. & P. R. R.'s. A. E. Roblee, Secy. & Manager. Cleveland, O., Mar. 30, 1904. Mr. C. C. Rosewater, Prop. Omaha Bee, Omaha, Neb.--Dear Sir: Our Western representative, Mr. W. A. Eddy, has advised us that he has entered into a lease with you for the building now occupied by us at 916 Farnam St., Omaha, Neb., and that you wished to have a statement from us as to whether such lease had our approval. We beg to advise you that Mr. Eddy is our authorized representative, and that the lease which he has made is in the name of the company, and is assumed by us. We have a contract with Mr. Eddy, as our representative, which will not expire until Jan. 1st, 1905. Yours truly, The Atlas Oil Company, per A. E. Roblee, Secy. Dict....