Davis v. Sterns

• Decision Date: 25 September 1909
• Docket Number: 15,742
• Citation: 122 N.W. 672,85 Neb. 121
• Parties: LEVI L. DAVIS, APPELLANT, v. FLOYD B. STERNS ET AL., APPELLEES
• Court: Nebraska Supreme Court

122 N.W. 672

85 Neb. 121

LEVI L. DAVIS, APPELLANT, v. FLOYD B. STERNS ET AL., APPELLEES

No. 15,742

Supreme Court of Nebraska

September 25, 1909

APPEAL from the district court for Cherry county: JAMES J HARRINGTON, JUDGE. Affirmed.

AFFIRMED.

J. H Broady, A. M. Morrissey and F. M. Walcott, for appellant.

C. L Gutterson and Sullivan & Squires, contra.

OPINION

DEAN, J.

Levi L. Davis, plaintiff and appellant, commenced this suit to recover on a promissory note against the defendants, who are husband and wife, for an alleged loan of money. The execution and delivery of the note sued on was admitted by defendants. Following is a copy of the note: "Hyannis, Neb., June 23, 1902. Six months after date, for value received, we jointly and severally promise to pay to the order of L. L. Davis, six thousand five hundred dollars, with interest at 6% per annum from date until paid. The drawers and indorsers severally waive presentment for payment, protest, and notice of protest, and nonpayment of this note, and all defenses on the ground of any extension of the time of payment that may be given by the holder or holders, to them or either of them. F. B. Sterns, Minnie A. Sterns. Payable at the Bank of Hyannis, Hyannis, Neb. $ 6,500. Due . Hyannis. Col. No. 6177. Hyannis, Neb." The case was tried to a jury. The defendants recovered a verdict and judgment of dismissal, and plaintiff appeals.

The petition is in the usual form employed in declaring upon a promissory note. The defendants answered separately. Floyd B. Sterns for his answer alleges, in substance, that it was agreed between the plaintiff and himself that they would jointly purchase a ranch in western Nebraska, each to pay one-half of the purchase price, defendant to have the management and to reside on the ranch, and that each of the parties should have the right to run an equal number of cattle thereon; that the defendant was to have $ 50 a month as manager, one-half to be paid by plaintiff; that in February, 1902, they together went to Cherry county, and decided upon purchasing the Stansbie ranch or range, together with the horses, machinery, household goods and fences on adjoining lands belonging to the ranch; that the ranch consisted of 1,120 acres of deeded land, at the agreed price of $ 13,000, of this $ 8,000 was to be paid in cash and $ 5,000 to be a deferred payment evidenced by a note secured by mortgage on the ranch, to be given when title was perfected by Stansbie; that $ 500 was paid to Stansbie at the time of purchase, the remainder of the cash payment to be made when the title was completed by Stansbie; that the parties jointly and as partners took possession of the property on May 2, 1902, and it was then agreed each should have an undivided one-half interest in the property; that in June, 1902, plaintiff and Floyd B. Sterns agreed with Stansbie that $ 8,000 and the note and mortgage should be placed in escrow awaiting the completion of title; that for convenience, and because plaintiff's wife was in Richardson county, it was agreed the defendant Floyd B. Sterns and his wife should make the note and mortgage for $ 5,000, take title in defendant Floyd B. Sterns, and afterwards convey to plaintiff an undivided one-half interest; that, in pursuance of the agreement, plaintiff deposited $ 6,500 in the bank at Hyannis in escrow, being his share of the purchase price, and Floyd B. Sterns deposited $ 1,500 in escrow, with the agreement that, when the title should be perfected, Sterns would execute a mortgage to Stansbie for $ 5,000 on the ranch; that Stansbie should then convey the ranch to Sterns; that after the mortgage was recorded the defendants were to convey to plaintiff an undivided one-half interest in the land; that, in pursuance of the agreement, defendant moved to the ranch with his family, and plaintiff and defendants took possession of the land; that plaintiff shipped over 100 head of cattle to run on the ranch in April, 1902, and afterwards by agreement came to the ranch, and purchased more horses to be used thereon, and stayed on the ranch with defendants, and made lasting improvements thereon; that he remained on the ranch until June 23, 1902, on which date the note in controversy was executed; that the plaintiff was then suddenly and unexpectedly called to return to Humboldt on urgent business affairs; that just prior to his departure he requested, and the defendants gave him, the note in suit as evidence of his interest in the ranch and other property; that Stansbie had not on June 23, 1902, yet procured complete title to all the land, and was therefore not in position to convey it; that the $ 6,500 deposited by plaintiff for his share of the purchase was yet in the bank awaiting completion of title; that plaintiff assured defendants he would surrender the note as soon as the title was perfected; that on or about June 27, 1902, the title being perfected, Stansbie and wife executed conveyances thereof to Sterns, and the defendants at the same time executed a note and mortgage on the ranch for $ 5,000 to Stansbie, and also executed and acknowledged a deed conveying to plaintiff his undivided one-half interest in the ranch, and immediately notified him thereof by letter, stating that they were ready and willing to deliver the deed to him; that about this time plaintiff became dissatisfied with the purchase; that plaintiff did not answer defendants' letter of notification, but remained silent until October, 1902, when he returned to the ranch, at which time the defendants again tendered to him a deed to his undivided one-half interest in all the property, and demanded a surrender of the note in suit; that plaintiff refused to accept the deed and refused to deliver to defendants the note sued on; that defendants are not liable for the note or any part thereof, and allege willingness to deliver to plaintiff a deed to an undivided one-half interest in all of the property.

The defendant Minnie A. Sterns alleges that she never had any estate of her own; that she signed the note merely as surety not intending thereby to bind her separate estate; that the debt was not hers, and that she received no benefit or consideration for signing the note. She avers the statements of her codefendant are true; that all the conditions for the giving of the note to be performed by defendants have been performed; that the plaintiff procured the note through fraud and deceit; that at the time of its execution he intended to repudiate the agreement and to hold the note as an obligation against defendants, all of which was then unknown to them; that the defendants believed and relied on the statements of plaintiff, since discovered to be false; that he wanted the note solely to protect himself and his estate against loss in event of the death of defendants or anything unforeseen happening to prevent defendants from performance of their part of the agreement. Plaintiff's reply denied generally the allegations...