Burkholder v. Fonner

• Decision Date: 17 February 1892
• Citation: 51 N.W. 293,34 Neb. 1
• Parties: JOHN BURKHOLDER v. JOHN FONNER
• Court: Nebraska Supreme Court

51 N.W. 293

34 Neb. 1

JOHN BURKHOLDER v. JOHN FONNER

Supreme Court of Nebraska

February 17, 1892

ERROR to the district court for Hall county. Tried below before HARRISON, J.

AFFIRMED.

Thummel & Platt, for plaintiff in error, cited: Butler v Kennard, 23 Neb. 359; Nicholas v. Jones, Id., 816; Anderson v. Cox, 16 Id., 10.

Abbott & Caldwell, contra.

OPINION

NORVAL, J.

The plaintiff in error brought suit in the district court to recover the sum of $ 500 as compensation for services alleged to have been rendered by him in the sale of certain real estate owned by the defendant. The jury returned a verdict for the defendant.

John Fonner, in 1885, owned a farm in Hall county, consisting of 880 acres, which he leased to the plaintiff and his two brothers for that year at a cash rental. In the month of February, 1886, the defendant traded the farm, with other lands, to one Levi Cox, for a stock of goods.

The testimony introduced on behalf of the plaintiff tends to show that at the time the defendant leased the farm, Mr. Fonner agreed if the plaintiff procured a purchaser for, or succeeded in selling the farm, for $ 17,000, he would pay the plaintiff for his services $ 500.

The testimony of the defendant is to the effect that he never employed the plaintiff and never had any conversation with him upon the subject, but that he engaged West & Schlotfeldt to sell the property; that they effected the exchange with Levi Cox, and defendant paid them therefor.

It appears that Mr. Cox learned of the land being for sale through conversations had with the defendant and Mr Schlotfeldt in Grand Island on February 19, 1886. It was then arranged that Mr. Schlotfeldt should, the next day, drive Mr. Cox out to see the land, which he did. On the way out they met the plaintiff, who was then residing on the land, and Mr. Cox was introduced to him, and plaintiff was then informed that they were going to look at the place. In answer to an inquiry made by Mr. Cox, the plaintiff described the lands, stated the number of bushels of grain raised thereon the previous season, and spoke of the place in the highest terms. He also mentioned that he had to go to Grand Island, but that his brother was at home and would show them the premises. After this conversation Mr. Cox and Mr. Schlotfeldt drove to the farm and did not see the plaintiff again until after the exchange was effected. Two or three hours were spent in examining the property, the same being exhibited by Mr. Schlotfeldt and one F. G. Burkholder, a brother to the plaintiff. Cox and Schlotfeldt then returned to Grand Island, and in the evening the trade was agreed upon.

The first error assigned arises upon the exclusion of certain testimony offered by the plaintiff. On his behalf Levi Cox the purchaser of the farm, was sworn. Near the close of the direct examination of the witness, and after he had minutely detailed all...