Dorrington v. Powell

• Decision Date: 20 October 1897
• Docket Number: 7498
• Citation: 72 N.W. 587,52 Neb. 440
• Parties: W. E. DORRINGTON ET AL. v. JOHN W. POWELL
• Court: Nebraska Supreme Court

72 N.W. 587

52 Neb. 440

W. E. DORRINGTON ET AL. v. JOHN W. POWELL

No. 7498

Supreme Court of Nebraska

October 20, 1897

ERROR from the district court of Richardson county. Tried below before BABCOCK, J. Reversed.

REVERSED AND case REVERSED.

Reavis & Reavis, for plaintiffs in error.

F Martin, contra.

OPINION

RYAN C.

As this case was tried in the district court of Richardson county on the same pleadings that it had been determined upon in the county court of that county, it will be necessary to describe them but once in a general way. John W Powell, by his petition, claimed of the defendants, W. E. Dorrington and David D. Reavis, partners doing business under the firm name of Dorrington & Reavis, the sum of $ 225, with interest. His cause of action was stated in the following language: "On the 10th day of January, 1893, the plaintiff entered into the service of the defendants at their request as agent to sell and dispose of certain goods of the value of $ 8,000, there in a storeroom in the city of Falls City, Richardson county, Nebraska, for which the defendants agreed to pay the plaintiff the sum of $ 225. The plaintiff sold said goods for the benefit of the defendants and has duly performed all the conditions in the contract on his part to be performed." Following the above averments there were allegations of a refusal to pay, and a prayer for judgment in the sum of $ 225 and interest. The answer was a general denial. There was a verdict and judgment in favor of Powell in the sum of $ 112.50, for the reversal of which judgment Dorrrington & Reavis have prosecuted error proceedings to this court.

On the trial, to sustain his action, Powell introduced in evidence a paper of which the following is a copy:

"This agreement, made this 10th day of July, 1893, between W. E Dorrington and David D. Reavis, of the first part, and F. S. Colby, witnesseth: That said first party agrees to sell to said second party their full stock of furniture, carpets, coffins and hearse, and all undertaker's goods at wholesale cash prices, including hearse, and on all damaged goods a reduction shall be made in proportion to the amount of the damages; and second party agrees to pay for the same as follows: Said first party to have the option of taking all of three separate tracts of land in Kansas, described as follows, to-wit: South 1/2 of the southwest 1/4 sec. 2, and the E. 1/2 of the S. E. 1/4 of section 3, town 2, south of range 25, west. Cash. 160 acres in Norton Co. at $ 2,000 for said 1/4 sec., subject to a mortgage of $ 1,200 (the R. G. Doom place, 6 miles southeast of Kanona). Cash. 160 acres near Kanona, Decatur Co. at $ 12.50 per acre (south 1/2 of S.W. 1/4 & N. E. 1/3 of the S.W. 1/4 and the southeast of the N. W. 1/4, sec. 9, town 2, south of range 29). Cash. 160 acres near Oberlin, Decatur Co., at $ 8 per acre. Said two last pieces are clear of incumbrances. Also a house and two lots in Lincoln, Neb. described as follows: Lots 5 and 6, block 88, University Place, Lincoln, Neb. at $ 3,000, clear. Of the said house and lots below trade of land--and the balance over and above such amounts and up to the invoice of said store, to be paid in cash by the second party, it is understood that all over the property and $ 2,500 cash, said Dorrington and Reavis will take good secured notes. Said invoice to be made and this contract carried out as soon as said first party can personally examine said property and the said invoice be made.

"Each of said parties hereto agree to place in the hands of J. W. Powell the sum of $ 100, which sum shall be forfeited by the party refusing to execute this contract, and be paid by said Powell to the party willing to carry out this contract. * * * The price of all goods that cannot be agreed upon shall be left to some wholesale furniture house. Hearse to be taken at the present value.

"W. E. DORRINGTON.

"DAVID D. REAVIS.

"S. F. COLBY.

"Witne...