Covey v. Henry

• Decision Date: 04 February 1904
• Docket Number: 13,360
• Citation: 98 N.W. 434,71 Neb. 118
• Parties: ABRAM L. COVEY v. ANDREW J. HENRY
• Court: Nebraska Supreme Court

98 N.W. 434

71 Neb. 118

ABRAM L. COVEY v. ANDREW J. HENRY

No. 13,360

Supreme Court of Nebraska

February 4, 1904

ERROR to the district court for Howard county: JAMES N. PAUL JUDGE. Affirmed.

AFFIRMED.

A. A Kendall, for plaintiff in error.

T. T Bell, contra.

FAWCETT, C. ALBERT and GLANVILLE, CC., concur.

OPINION

FAWCETT, C.

This case was originally commenced in the county court of Howard county, to recover the sum of $ 200, which plaintiff claimed to be due him fro the defendant as a commission for finding a purchaser for defendant's land. On the same day that plaintiff filed his petition in the county court, defendant filed an answer substantially admitting the allegations of plaintiff's petition, but claiming that one Harry L. Cook also claimed to have produced the purchaser for said land and demanded the commission, and alleging that he was unable to determine which of said parties was entitled to the commission, and deposited $ 200 in court, asking the court to determine the right of the parties to said money. On the next day the parties both appeared in county court, by their attorneys, and defendant asked leave to withdraw his answer and deposit, which leave was granted, and the answer and deposit were withdrawn. Subsequently, plaintiff filed an amended bill of particulars, to which an answer was filed, and, without any reply to said answer, the parties went to trial in the county court before a jury, which resulted in a verdict and judgment for the plaintiff for the sum of $ 150, from which the defendant appealed to the district court. In the district court the plaintiff filed his petition, which was an exact duplicate of the amended bill of particulars filed in the court below, and is as follows:

"Comes now the above named plaintiff and, for cause of action against the defendant, alleges, that on or about the day of June, 1901, or some time previous thereto, the defendant was the owner of the south half of section eight, in township fifteen north of range ten west of the 6th principal meridian, in Howard county, Nebraska.

"That on or about that time the defendant, being desirous of selling said land, entered into an oral agreement with the plaintiff, and agreed that if the plaintiff would find a purchaser for said land, who would buy the same from the defendant, he, the defendant, would pay the plaintiff, for so doing, the sum of $ 200, and defendant stated his price for said land to be the sum of $ 8,000.

"That thereafter, to wit: on or about the 28th day of August, 1901, the plaintiff did find a purchaser for said land, viz.: one Charles Sumovich, and plaintiff took said Sumovich to said land and showed him the said land, and the said Sumovich made a close and careful examination of said land, and was satisfied with the said land, and told plaintiff that he would go home and make arrangements for the money to pay for said land with, and would return to the defendant herein and would buy said land from the defendant.

"That the plaintiff then told the defendant that he had found a purchaser for said land, and told him what said Sumovich had said, and told him that said Sumovich would return, as he had said he would, and that he would buy said land from the defendant, and the defendant was then satisfied with said arrangement.

"That thereafter, on or about the 24th day of September, said Sumovich did return to St. Paul, and did go to said defendant as he had said he would, and he did buy said land from the defendant as he had said he would, and defendant sold said land to said Sumovich for the sum of $ 8,500.

"That, on the 25th day of September, the plaintiff, not knowing that said sale had been made, again called upon the defendant and told him that said Sumovich was in town, and that he had come to buy said land, and said defendant again promised, orally, that if said Sumovich did buy said land, he the defendant, would pay the plaintiff the said sum of $ 200. That the defendant knew at that time that he had sold said land to said Sumovich, but concealed the fact from the plaintiff.

"Wherefore, the plaintiff says there is now due him from the defendant the sum of $ 200, agreed as aforesaid to be paid by the defendant, which the defendant refuses to pay, though often requested so to do, and for which sum the plaintiff prays judgment, and for the costs of this suit."

An answer was filed to this petition, a reply to the answer, and a trial had in the district court, which resulted in a verdict for the plaintiff for $ 100, which verdict, on motion of defendant, was set aside and a new trial ordered. Plaintiff then, by leave of court, filed an amended reply. The first paragraph of the reply is a general denial. The second paragraph alleges that the law, requiring contracts between the owners of land and agents authorized to sell the same to be in writing, does not apply to such contracts as the one between plaintiff and defendant. The third paragraph alleges that said law is against public policy and, therefore, unconstitutional and void. The fourth paragraph alleges that the defendant waived the defense of the statute of frauds, by the filing of the answer and making the deposit in the county court, hereinbefore referred to. The fifth paragraph alleges that the making of said answer and the deposit of said money in the county court constituted a new contract, which related back to the original contract, and that said original contract was, therefore, taken out of the statute of frauds, and defendant ought not now to be allowed to plead said statute. The sixth paragraph is, in substance, the same as the fifth. The seventh paragraph alleges that defendant, having accepted the services of plaintiff, and having accepted that part of said contract which was beneficial to himself, should not now be allowed to repudiate that part of the contract which is detrimental to himself.

Defendant then filed a motion to strike from the amended reply all of paragraphs four to seven, both inclusive, for various reasons set out in the motion. This motion was overruled. Thereupon defendant filed the following demurrer:

"Comes now the defendant and demurs generally to the amended reply of the plaintiff filed herein, for the reason that neither the amended reply nor the petition, nor both, state a cause of action in favor of the plaintiff and against the defendant."

The demurrer was sustained, and plaintiff electing to stand on his petition and amended reply, the cause was dismissed at the cost of plaintiff.

There are six assignments of error, but they are all practically included in the first and second assignments: that the court erred in sustaining the demurrer to the reply and petition, and erred in dismissing plaintiff's cause of action.

While the defendant, in his demurrer, says that he "demurs generally to the amended reply of the plaintiff filed herein," yet the trial court and the parties to the action seem to have treated it as a demurrer to both the reply and petition, and we shall treat it in the same manner.

Defendant in support...