Collyer v. Davis
| Decision Date | 21 December 1904 |
| Docket Number | 13,684 |
| Parties | GEORGE P. COLLYER v. LATHAM DAVIS |
| Court | Nebraska Supreme Court |
ERROR to the district court for Douglas county: GUY R. C. READ JUDGE. Reversed.
REVERSED.
Smyth & Smith, for plaintiff in error.
I. E Congdon, contra.
OLDHAM C. AMES and LETTON, CC., concur.
This was an action brought by plaintiff, George P. Collyer, in the district court for Douglas county, Nebraska, against defendant, Latham Davis, for damages for the alleged breach of a contract for the sale and purchase of a tract of land called "The Glebe," situated in the state of Virginia. After the evidence was presented, defendant moved the court to direct the jury to return a verdict in his favor, on the theory that the evidence failed to show that plaintiff, Collyer, as vendor, had ever made a note or memorandum in writing which would evidence the alleged contract of sale. The court accordingly directed a verdict as requested by defendant. A motion for a new trial was filed by plaintiff and overruled, and judgment was entered upon the verdict, and to reverse this judgment plaintiff brings error to this court.
The only question to be determined is as to whether the evidence introduced by plaintiff in the court below is sufficient to show a memorandum in writing signed by the vendor of the lands, or his agents authorized by him in writing to subscribe to such agreement. A contract for the sale of lands is governed by the provisions of sections 5 and 25, chapter 32, Compiled Statutes, 1903 (Annotated Statutes, 5954, 5974), which are as follows:
The land which formed the subject of this alleged contract is, as above stated, located in Westmoreland county, Virginia. The plaintiff is a resident of Virginia, and the defendant, at the time of the negotiations, was a resident of the state of Nebraska. In April, 1903, defendant Davis, accompanied by one of his employees named McDermott, went to Virginia for the purpose of purchasing land. At the village of Hague, in the state of Virginia, they met Messrs. Murphy and Mayo, who were real estate agents of the village and county. The lands in dispute had been placed in charge of these agents by plaintiff Collyer, under a contract in writing, signed and sealed by the plaintiff, which, after fixing the terms and price of the land, contained the following condition: The terms named in the contract were $ 8,000, payable one-fourth down and the remainder in one, two and three years. After defendant Davis and his employee had examined the land, according to plaintiff's testimony, Davis offered $ 5,500 for the land, one-third down, one-third in one year and one-third in two years. This offer was made on April 17, 1903, and was communicated to plaintiff by his agents Murphy & Mayo in the following telegram:
On the following day plaintiff wired Murphy & Mayo as follows:
On the same day Collyer wrote to Murphy & Mayo as follows:
On receipt of this communication Murphy & Mayo, on the 19th of April, wrote to plaintiff Collyer, that they had completed the sale with the defendant Davis, who had just left for the state of Nebraska, leaving Mr. McDermott, according to plaintiff's testimony, to complete the arrangements for the transfer of the place, and take possession for him as soon as the papers have been exchanged and the terms of the contract completed. At the same time Murphy & Mayo wrote Collyer this last letter, they wired to defendant Davis, at Omaha, as follows:
On the 30th of April, defendant Davis wrote to Murphy & Mayo as follows:
etc. At the bottom of this letter was marked "Over" and the following memorandum was placed on the back of the letter: "Cash $ 1,833.34, note one year $ 1,833.33, note two years $ 1,833.33, total $ 5,500."
On May 8, Murphy & Mayo wired defendant at Omaha:
Following all this correspondence Murphy & Mayo procured a deed to the premises, duly executed and acknowledged by the plaintiff, and also had drawn up two notes, according to the terms of the agreement, and a sight draft of five days for the one-third cash payment, and inclosed these papers with a memorandum of the title of the land, and transmitted them through the bank at Alexandria, Virginia, to the First National Bank of Omaha, as directed by defendant Davis, for his inspection, and with directions that the deed should be delivered on payment of the draft and the execution of the notes and deed of trust and that the notes and deed of trust should be sent back to the bank at Alexandria, Virginia. When the deed, draft notes and mortgage were received at the First National Bank of Omaha, certain objections were interposed to the chain of title and to the form of security by defendant's attorney, and the objections were sent back through the mail to Murphy & Mayo. Murphy & Mayo then wrote, practically offering to comply with all the requirements demanded. But this offer was refused by defendant, who declined any further negotiations with reference to the property.
It is conceded that, unless the contract falls within the ban of the statute of frauds, the question as to whether plaintiff had complied with the conditions of the contract or not was one of fact, which under plaintiff's testimony should have been submitted to a jury. So that the only question for us to determine is whether or not the correspondence above set out constitutes a sufficient memorandum in writing signed by plaintiff, or an agent authorized under the terms of the statute to subscribe to such memorandum for him. It is conceded that Murphy & Mayo under the written contract with plaintiff had, when the negotiations were begun, proper and full authority to contract for the sale of the land in dispute on the terms specified in their agreement with ...
To continue reading
Request your trial