Brothers v. Powell

• Decision Date: 21 October 1903
• Docket Number: 12,978
• Citation: 97 N.W. 249,70 Neb. 152
• Parties: STULL BROTHERS v. THOMAS POWELL ET AL
• Court: Nebraska Supreme Court

97 N.W. 249

70 Neb. 152

STULL BROTHERS v. THOMAS POWELL ET AL

No. 12,978

Supreme Court of Nebraska

October 21, 1903

ERROR to the district court for Hamilton county: SAMUEL H SORNBORGER, JUDGE. Reversed.

REVERSED.

Stull Brothers, Claude C. Flansburg and Richard O. Williams, for plaintiffs in error.

Hainer & Smith, contra.

HASTINGS C. AMES and OLDHAM, CC., concur.

OPINION

HASTINGS, C.

The main question in this case is as to venue and jurisdiction. In November, 1900, Thomas Powell filed in the county court of Hamilton county a petition against Farley & Burt and Stull Brothers, alleging that the latter were an unincorporated company formed to carry on a loan brokerage business in Nebraska and having its place of business in Omaha, and the former a like company of Aurora, Hamilton county, Nebraska and that they were "cooperating together" in making a $ 4,000 loan to Powell; that in November, 1899, the latter applied to Farley & Burt, at Aurora, for a loan of $ 4,000 on 320 acres of Hamilton county land, on which were already two mortgages, and one of which Stull Brothers had negotiated and had the management of; that Burt & Farley forwarded the application to Stull Brothers, who accepted it, and note, coupons and mortgage were made out by Powell and delivered to Farley & Burt, and by them forwarded to Omaha with abstract of title. Defendants were to make the loan for a commission of $ 100 and were to take up the existing mortgages; that these amounted to $ 1,524.25 and $ 1,610 respectively, leaving still due Powell $ 765.25, which amount the defendants have wholly failed and refused to pay. Judgment is asked for $ 765.25 and seven per cent. interest from January 1, 1900. Service of summons was waived by Farley & Burt, and service was had upon Stull Brothers at their usual place of business in Omaha. The two firms answered separately, Farley & Burt putting in a cross-petition for $ 40, their share of the commission. This last was dismissed by the county court, but a finding and judgment for plaintiff in the sum of $ 849.50 was entered against all defendants.

Farley & Burt seem to have filed an appeal bond. If Stull Brothers appealed, the record does not show it. Apparently they did, as they appeared in district court, where plaintiff Powell filed substantially the same petition, alleging that defendants "cooperated together" in making the loan, the payments that were to be made out of it, and that there were $ 765.25 and interest still due plaintiff.

Stull Brothers answered:

(1) That plaintiff was not the real party in interest, but Farley & Burt who were the instigators of the suit; (2) that there was no jurisdiction of them in Hamilton county because there was no joint liability with Farley & Burt, who were joined solely to get jurisdiction by means of having a resident defendant.

They deny that they are an association of persons formed for doing business in Nebraska, and deny "cooperating" with Farley & Burt in the loan negotiations with plaintiff. They admit making a loan to plaintiff of $ 4,000 and deny plaintiff's other allegations. They allege that Farley & Burt's action was as agents for plaintiff; that the papers were received from Farley & Burt, and the full proceeds of the loan, less commission and the two mortgages which were to be paid, were sent to Farley & Burt for plaintiff, and they have held and are holding such proceeds as plaintiff's agents.

Farley & Burt answered, admitting the loan and its terms; that the money was to be paid to plaintiff by Stull Brothers; that Stull Brothers sent a check for $ 711.25 to be delivered to plaintiff, which he refused, claiming a larger sum. They also set up their claim for $ 40 as agreed to be paid them by Stull Brothers.

A general denial was filed in reply to both answers.

The cause was tried to the court without a jury, and a finding and judgment entered for $ 893 for Powell against all defendants, and the cross-petition was dismissed at Farley & Burt's cost. Stull Brothers filed a motion for new trial, for error in the amount of recovery; that the judgment was contrary to law; the findings contrary to the evidence and not sustained by it; error in the inclusion of interest on the money offered plaintiff; in finding defendants jointly liable; and error in finding jurisdiction in Hamilton county over Stull Brothers in this action.

The motion was overruled; and Stull Brothers bring error to this court, and urge that there was no joint liability shown; that, consequently, there was no jurisdiction as against them in Hamilton county; that there was error in allowing interest on the money paid to Farley & Burt and error in the inclusion of the amount of such payment in the judgment.

The first of these complaints is important, only, because of its bearing on the second. The last two turn upon the evidence, according as it is held to show or not show that Farley & Burt were agents of plaintiff and not of Stull Brothers in the transactions.

It is clear that plaintiff's rights are upon a contract by the defendants to loan him $ 4,000 or procure such a loan for him; and the action is for a failure to pay him the proceeds of the loan as agreed. There is no specific fund of money to which plaintiff's right is alleged to be denied. There is no plea of any conversion of the notes and mortgage and no statement of facts showing such conversion. The allegation is simply of a failure on defendants' part to pay to Powell an agreed sum of money. The allegations of the petition are somewhat vague but, on a liberal construction and after judgment, should be taken as stating a joint agreement of all defendants to procure the $ 4,000 loan. In that situation, suit, of course, might be instituted in any county where service of summons could be made on any party to the agreement. Code, section 60. The right to maintain it, however, would depend upon plaintiff's really having a right to recover from the resident defendants, jointly with the others, as liable upon the contract to furnish the loan.

In Barry v. Wachosky, 57 Neb. 534, 77 N.W. 1080, three parties, residents of Dakota county, made a joint non-negotiable note to Clarke, a resident of Douglas county. Clarke sold the note, indorsing on it a guaranty of payment. The makers were held to have rightfully objected to the jurisdiction in Douglas county, and the action was, by this court, dismissed as against them. They were liable, but not liable jointly with Clarke.

In the present case, we have looked in vain through the evidence for any joint ground of liability on the part of Stull Brothers and of Farley & Burt. Stull Brothers were to furnish the money and Stull Brothers were to pay off the existing liens. The trouble arose over their paying ten per cent. interest on $ 1,000 which was,...