Blakeslee v. Ervin

• Decision Date: 17 April 1894
• Docket Number: 5349
• Citation: 58 N.W. 850,40 Neb. 130
• Parties: GEORGE W. BLAKESLEE v. CHARLES L. ERVIN ET AL
• Court: Nebraska Supreme Court

58 N.W. 850

40 Neb. 130

GEORGE W. BLAKESLEE v. CHARLES L. ERVIN ET AL

No. 5349

Supreme Court of Nebraska

April 17, 1894

ERROR from the district court of Dawson county. Tried below before GASLIN, J.

AFFIRMED.

E. A Cook, for plaintiff in error.

H. C. May and Hamer, Sinclair & Brown, contra.

OPINION

HARRISON, J.

This action was commenced by defendants in error in the county court of Dawson county, Nebraska, where they filed the following petition:

"The plaintiffs complain of the defendant and allege that they are partners doing business under the firm name of Ervin & Hammond, and are engaged in the sale of real estate and other property on commission in Dawson county, Nebraska; that on the 10th day of May, 1890, the defendant, being the owner of certain shares of stock in the Dawson County National Bank, a corporation organized and existing under the laws of the United States, applied to the plaintiffs to find a buyer or purchaser therefor, and then and there agreed to give the plaintiffs, as commission therefor, the amount in excess of the face or par value of said stock, for which the same was sold to the purchaser furnished by them; that pursuant to said agreement the plaintiffs furnished purchasers for said stock, and on or about June 1, 1890, the same was sold to them; that the face value of said stock was the sum of twenty-six thousand dollars ($ 26,000); that the purchase price of said stock, and the amount for which the same was sold, was the sum of twenty-six thousand dollars ($ 26,000) cash, and the defendant, in addition thereto, to retain and reserve three (3) per cent of said twenty-six thousand dollars ($ 26,000), amounting to the sum of seven hundred eighty dollars ($ 780) of the assets of said corporation that said defendant took and received for said stock from the purchasers as aforesaid said sum of twenty-six thousand dollars ($ 26,000) in cash, and good solvent promissory notes of the amount and value of the sum of seven hundred eighty dollars ($ 780); that the said sum of seven hundred eighty dollars ($ 780) is due and payable to the plaintiffs from the defendant as per said contract made as aforesaid; that notwithstanding the premises aforesaid the defendant has refused, and still refuses, to pay the same although he has often been requested to do so, to the plaintiffs' damage in the sum of seven hundred eighty dollars ($ 780.)"

To this petition the plaintiff in error, defendant in the courts below, filed an answer, admitting the partnership of Ervin & Hammond, also admitting that on or about May 10, 1890, he was owner of certain shares of stock in the Dawson County National Bank, and denying each and every other allegation or statement of the petition.

A trial was had of the issues thus presented in the county court, and an appeal taken by the party defeated there to the district court, where no new pleadings were filed, but by agreement of the parties the case was tried to the judge presiding and a jury, on the pleadings filed in the county court. The trial in the district court resulted in a verdict for Ervin & Hammond. Blakeslee filed a motion for a new trial, which was overruled, and judgment rendered on the verdict for Ervin & Hammond. The case is brought here by Blakeslee by petition in error.

The first of the assignments of error urged is that the judgment is not sustained by sufficient evidence. The evidence, we conclude, after a careful examination of it, discloses that Mr. Blakleslee was, on or about May 10, 1890, the owner of or could control, 260 shares of the stock of the Dawson County National Bank, of the face value of $ 26,000, or $ 100 per share, and desired to sell the same; that probably Mr. Leflang, who subsequently purchased it, and who then was understood to have in contemplation the establishment of another bank in Lexington, Dawson county, Nebraska, was approached by Mr. Blakeslee and asked by him to buy the stock of the Dawson County National Bank, of which he was the owner; that Mr. Ervin, of the real estate firm, after this conversation between Blakeslee and Leflang, went to Mr. Blakeslee and told...