English v. Milligan

• Decision Date: 17 September 1889
• Citation: English v. Milligan, 27 Neb. 326, 43 N.W. 120 (Neb. 1889)
• Parties: PAUL A. ENGLISH, APPELLEE, v. JOHN O. MILLIGAN, APPELLANT. JOHN O. MILLIGAN, APPELLANT, v. PAUL A. ENGLISH, APPELLEE
• Court: Nebraska Supreme Court

43 N.W. 120

27 Neb. 326

PAUL A. ENGLISH, APPELLEE, v. JOHN O. MILLIGAN, APPELLANT.

JOHN O. MILLIGAN, APPELLANT, v. PAUL A. ENGLISH, APPELLEE

Supreme Court of Nebraska

September 17, 1889

APPEALS from the district court for Wayne county. Heard below before NORRIS, J.

Decree in case of Milligan against English affirmed, and in case of English against Milligan set aside and cause remanded with directions.

Northrop & Welch, and J. C. Crawford, for appellant Milligan:

Misrepresentations were made by appellee, and whether fraudulent or not, if acted upon by another to his prejudice, are grounds of relief in equity. (Morgan v. Hardy, 16 Neb. 427). Mutuality of obligation is a necessary element in contract. (State v. Barker, 4 Kas., 380). As to the requisites of a decree of specific performance; Pomeroy, Eq. Jur., Vol. 3 Sec. 1,405 N. 1. Morgan v. Hardy, 16 Neb. 438. The alleged contract of April 28 failed to show the name of the proposed vendee or to describe the property, and upon its face was an agreement for credit whose terms were not fixed hence it is wholly insufficient. (Schmeling v Kreisel, 45 Wis. 325; Blanchard v. McDougal, 6 Id., 167; Knoll v. Harvey, 19 Id., 99; Tiernan v. Gibney, 24 Id., 190; Iron Co. v. Todd, 14 A. 27.) As the possession of English was uninterrupted throughout, there could be no new possession, but only a continuation of that which he had. (Blanchard v. McDougal, 6 Wis. 167; Knoll v. Harvey, 19 Id., 99.) An agreement will not be enforced which is not certain, mutual, and reasonable, or which is tainted with fraud, surprise, improper concealment or misrepresentation. (3 Wait's Act. and Def., 188; Flight v. Bolland, 4 Russ., 298; Cathcart v. Robinson, 5 Pet. [U.S.], 264; German v. Machin, 6 Paige, 288; Bruck v. Tucker, 42 Cal. 346; Waring v. Ayres, 40 N.Y. 357; Blanchard v. Ry. Co., 31 Mich. 43.) A party cannot compel the performance of a contract by another which he is not himself bound to perform. (Pomeroy, Eq. Jur., Vol. 3, Sec. 1,405, N. 1, 2; Cordova v. Smith, 9 Tex. 129; 58 Am. Dec., 136; Bodine v. Glading, 21 Pa. 50; 59 Am. Dec., 749; 5 Wait's Act. and Def., 778.)

H. C. Brome, and James Britton, for appellee:

The claim of misrepresentation is refuted by the evidence. A verbal contract for the sale of real estate, where there is possession and part performance, will be specifically enforced. (Haines v. Spanogle, 17 Neb. 637.) The possession of English was under the contract of purchase, and coupled with payment would avail as part performance. (Blanchard v. McDougal, 6 Wis. 165.)

OPINION

REESE, CH. J.

Prior to the commencement of the two suits which are now before us, the principal parties Milligan, and English, were partners doing business in Wayne, in this state, as J. O. Milligan & Company; the business being that of buying and selling lumber, agricultural implements, grain, and coal.

On the 14th day of October, 1887, English, as plaintiff, filed his petition in the district court, in which the fact of the partnership was alleged, and that on the 16th day of May, 1887, the firm owned one elevator building, on the right of way of the Chicago, St. Paul, Minneapolis & Omaha Railroad Company, also lots 7, 8, 9, 10, 11, and 14, in block 20, in the town of Wayne, also a house and lot known as the Woodruff house, described as lot 3, and the south half of lot 2 in block 7, in Crawford & Brown's addition to said town; also obligations and accounts amounting to a large sum, and grain in the crib. The legal title to lot 13, block 20, was in the name of plaintiff and defendant as tenants in common. The title to the house known as the Woodruff house was in the firm name of J. O. Milligan & Company. The title to lots 7, 8, 9, 10, 11, and 14, was in the name of defendant John O. Milligan. The corn cribs were located on the land, the title to which was in Milligan, the said title being held in trust for the firm. On lots 7 and 8 in block 20, the firm had constructed a brick block of great value with partnership funds. It was alleged that on or about the said 16th day of May, 1887, defendant entered into an agreement with plaintiff, and thereby sold and agreed to deed to plaintiff all of defendant's right, title, and interest in all of the property described, and including the business of the firm, for the sum of twenty-nine thousand dollars, which plaintiff agreed to pay; that by the terms of said agreement defendant was to take as part payment of said account the elevator building at five thousand dollars; the house and lot known as the Woodruff house at eleven hundred dollars, the balance to be paid in notes, demands, and accounts due the firm; that in case the proceeds to be collected were insufficient to pay the remainder, plaintiff should pay the deficiency in money; and in case any claims should be lost the loss should fall equally on both parties; that plaintiff should collect the outstanding claims without charge to defendant, and that defendant should have all the profits of the elevator business after January 1st, 1887; that in pursuance of said agreement and sale the partnership was dissolved and defendant took possession of the elevator building and had occupied the same ever since, dealing in grain therein, and had also taken possession of the property known as the Woodruff house, and received the rents and profits thereof; that at the same time plaintiff took possession of all the other property formerly owned by the firm and had ever since occupied the same; that on the 1st day of June, 1887, defendant bought of plaintiff the contracts for grain and the grain in the elevator, amounting to four thousand five hundred and sixty-four dollars and thirty-two cents; and the corn in the crib of the value of four hundred and eighty-four dollars, which by the sale had become the property of the plaintiff, and had agreed to apply the same as part payment of the twenty-nine thousand dollars; that on the 4th day of the same month, at the request of defendant, plaintiff paid ninety-one dollars and ninety cents on checks issued by defendant; that since the said 1st day of June plaintiff had proceeded with due diligence to collect the note and accounts due the firm, which exceeded the liabilities of the firm, and the amount due defendant, and was still so engaged; that on the 20th day of June, 1887, he executed the necessary conveyances to be made by him to defendant and offered the same to defendant, who refused to accept them, and that he demanded the proper conveyances from defendant, which defendant also refused to make; that after the making of the agreement referred to, and in violation thereof, defendant executed to defendant Gardenier a mortgage on his interest in lots 7 and 8 in block 20, upon which the brick building had been erected, but at the time of the execution thereof the property mortgaged was in the possession of plaintiff, and that Gardenier well knew of his rights under his purchase, and that the mortgage was in fraud of plaintiff's rights. A specific performance of the contract was prayed.

To this petition defendant Milligan filed his answer, admitting the existence of the partnership, to ownership of the accounts and notes, the grain, elevator, and property known as the Woodruff house, that the legal title in lots 7, 8, 9, 10, 11 14, block 20, was in him, and that the firm had constructed the brick house on lot 7 with partnership funds and by so doing the firm had obtained an equitable interest in said lot which he was willing to convey to it upon being paid its value; and denying that plaintiff or said firm had any interest whatever in the title to the other lots in said block. The execution of a mortgage for two thousand dollars to Gardenier was admitted, but all fraud was denied in connection therewith, and it was alleged that it was executed in good faith and for value. It was alleged that about the first day of January, 1887, it was agreed by plaintiff and defendant that the partnership business should be closed up and discontinued as soon as practicable thereafter; that plaintiff, who had had charge of the business of the firm, should cease buying, excepting such articles as might be of immediate use, and collect all accounts and notes due the firm as fast as possible, and should reduce the liabilities as rapidly as practicable; and that he should endeavor to find a purchaser for the property and business of the firm; that about the 27th of April, 1887, plaintiff came to the residence of the defendant at Scribner and represented to defendant that he had found a purchaser for the whole firm property in Wayne; that the liabilities of the firm did not exceed five hundred dollars, and that the accounts due to the firm held by him for collection had, by collection, been reduced to six thousand dollars, and desired defendant to state what he would take for his interest; that relying upon the representations of plaintiff, as to the amount of the assets and liabilities of the firm, defendant agreed, if the sale of the entire property and business of said firm could be made, to take twenty-nine thousand dollars for his interest; and for the purpose of aiding in effecting a sale, that if the elevator and Woodruff house and lot could not be included in such sale, he would take the elevator at five thousand dollars, and the house and lot at eleven hundred dollars; that for the purpose of having a complete settlement of the partnership affairs, and relying on the statements of plaintiff as to the assets and liabilities of the firm, he agreed to take the notes and accounts, which would amount to $ 5,500, and which would leave about $ 1,700 due him in case the sale should be made; that no purchaser was ever found, and no person had ever paid, or offered to pay, the defendant the...