Conner v. Hingtgen

• Decision Date: 07 April 1886
• Citation: 27 N.W. 443,19 Neb. 472
• Parties: ISAAC CONNOR, PLAINTIFF IN ERROR, v. JOHN P. HINGTGEN, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

27 N.W. 443

19 Neb. 472

ISAAC CONNOR, PLAINTIFF IN ERROR, v. JOHN P. HINGTGEN, DEFENDANT IN ERROR

Supreme Court of Nebraska

April 7, 1886

ERROR to the district court for Dixon county. Tried below before CRAWFORD, J.

REVERSED AND REMANDED.

W. E Gantt, for plaintiff in error, cited: Hanlon v Wilson, 10 Neb. 138. McCormick v. Drummett, 9 Neb. 384. Friedhoff v. Smith, 13 Neb. 6. Rickards v Cunningham, 10 Neb. 417.

Barnes Bros., for defendant in error, cited: Morrissey v. Kinney, 16 Neb. 17. McDonnell v. Dodge, 10 Wis. 92. Wallingford v. Burr, 15 Neb. 204.

OPINION

MAXWELL, CH. J.

In order that the questions at issue may be fully understood, it is necessary to set out the pleadings. The plaintiff alleges in his petition:

"1st. That during the year 1882 the plaintiff and defendant were partners in the grocery business in the village of Ponca.

"2d. That in August of that year he sold to defendant his interest in said business, and the partnership was dissolved; that at that time the plaintiff was occupying the upper part of the building in which said grocery business was carried on.

"3d. That previous to the time of making said sale the plaintiff, under an agreement with one John Breslin, the owner of said building, fitted up the upper part of said building as a residence, and by the terms of said agreement was to occupy and have the use of the same for such time as, at a rental of one hundred dollars a year, he would receive back the amount expended by him for said fitting up said upper part of said building.

"4th. That at the time of the sale aforesaid the cost of fitting up said upper part of said building had not been agreed upon between the parties aforesaid, and it was then agreed upon by this plaintiff and defendant that defendant should take said upper part of said building off the hands of this plaintiff, and pay to this plaintiff, on or before the first day of January, 1883, the amount that should be agreed upon between said plaintiff and said John Breslin for so fitting up the same. It was also agreed that plaintiff should have the use and occupancy of the upper part of said building for such length of time as he desired, on condition that he pay rent to said defendant for whatever time he might occupy said premises on and after the 14th day of October, 1882.

"5th. That said plaintiff and said John Breslin afterwards agreed that the cost of fitting up said premises should be allowed in the sum of two hundred dollars, and said defendant was notified of said agreement, and payment of said sum was demanded of him. That the agreement herein mentioned between plaintiff and Breslin, in which plaintiff expended said sum of $ 200 in fitting up said rooms, was considered in said trade as part of the contract between plaintiff and defendant, and the said $ 200, the cost of fitting up, was assumed by defendant and was to be paid to the plaintiff as a part of the consideration of his sale of his partnership interest as aforesaid. That plaintiff complied with all the terms of the agreement on his part to be performed, and offered to deliver possession of the said rooms to defendant.

"6th. That said defendant refused and still refuses to take said rooms and to pay said sum of two hundred dollars."

The defendant filed an amended answer to said petition as follows:

"1st Denies each and every allegation contained in plaintiff's petition, except the allegations of partnership and sale of said business from plaintiff to defendant.

2d. Defendant, further answering, says that said plaintiff and this defendant were co-partners, doing business in Ponca Dixon county, Nebraska, under the name of Connor and Hingtgen, and were engaged in the business of general merchandising at and prior to the time of the pretended agreement mentioned in plaintiff's petition; that at or about the said time said partnership was dissolved, and this defendant bought out the said plaintiff's interest in said business, that thereupon, in order to induce...