Elvidge v. Brant

Citation267 N.W. 169,131 Neb. 1
Decision Date12 May 1936
Docket NumberNo. 29680.,29680.
CourtSupreme Court of Nebraska

131 Neb. 1
267 N.W. 169


No. 29680.

Supreme Court of Nebraska.

May 12, 1936.

[267 N.W. 170]

Syllabus by the Court.

1. “Where an objection that a petition does not state a cause of action is not interposed until after the commencement of the trial of a case, the pleading will be liberally construed, and, if possible, sustained.” Welch v. Adams, 87 Neb. 681, 127 N.W. 1064.

2. “Where there is integration (formal written agreement) of part of the terms of a contract, prior written agreements and contemporaneous oral agreements are operative to vary these terms only to the same extent as if the whole contract had been integrated.” Restatement of Law of Contracts, § 239.

3. “(1) An oral agreement is not superseded or invalidated by a subsequent or contemporaneous integration, nor a written agreement by a subsequent integration relating to the same subject-matter, if the agreement is not inconsistent with the integrated contract, and

(a) is made for separate consideration, or

(b) is such an agreement as might naturally be made as a separate agreement by parties situated as were the parties to the written contract.

(2) Where no consideration is stated in an integration, facts showing that there was consideration and the nature of it, even if it was a promise, or any other facts that are sufficient to make a promise enforceable, are admissible in evidence and are operative.” Restatement of Law of Contracts, § 240.

4. “When the terms of an agreement have been intended in a different sense by the parties to it, that sense is to prevail against either party in which he had reason to suppose the other understood it.” Comp.St.1929, § 20-1217.

5. “After the final adjournment of the term of court at which a judgment has been rendered, the court has no authority or power to vacate the judgment except for the reasons stated and within the time limited in chapter 20, art. 20, Comp.St.1929.” Lyman v. Dunn, 125 Neb. 770, 252 N.W. 197.

6. “In the absence of specific provision to the contrary, the vendor must convey a title which is free from encumbrances.” 66 C.J. 903.

7. “The measure of damages in the case of a breach of contract is the amount which will compensate the injured person for the loss which a fulfillment of the contract would have prevented or the breach of it has entailed.” 17 C.J. 847.

Appeal from District Court, Madison County; Stewart, Judge.

Action by Albert O. Elvidge and another against Irvin S. Brant. From a judgment for plaintiffs, defendant appeals.


Kelsey & Kelsey, of Norfolk, for appellant.

Deutsch & Young, of Norfolk, for appellees.

Heard before GOSS, C. J., ROSE, GOOD, DAY, PAINE, and CARTER, JJ., and YEAGER, District Judge.

[267 N.W. 171]

GOSS, Chief Justice.

Defendant appeals from a judgment against him for $6,000 following the verdict of a jury.

The petition alleges that in May, 1933, Golden Star Creamery, Inc., was engaged in the manufacture and distribution of butter and other dairy products at Norfolk, plaintiffs were employees in charge of its operation, and defendant was a wholesaler of butter and other food products at Reading, Pennsylvania; that the creamery company was the owner of certain described real estate in Norfolk, with its plant mortgaged as real estate and its equipment by a collateral chattel mortgage, to Lincoln Safe Deposit Company, as trustee, for bondholders, in the sum of $30,000; that during September, 1933, with the aid of plaintiffs, defendant negotiated the purchase of the mortgage and bonds for $20,000, and in November, 1933, they were delivered to him for that sum, and defendant became the owner by deeds and bills of sale of all the creamery property in consideration of his agreement to forbear any right to a deficiency judgment against Golden Star Creamery, Inc., or to enforce any rights against its directors and stockholders; that defendant went into possession of the creamery property about January 1, 1934, subsequently foreclosed and received sheriff's deed and bill of sale on or about July 19, 1934, and is now the owner in fee simple of all of said property.

The petition further alleges that on or about December 15, 1933, defendant orally agreed with plaintiffs to perfect a corporate organization in the event of the acquisition of the creamery property and to sell...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT