Fletcher v. Brewer

• Decision Date: 09 January 1911
• Docket Number: 16,201
• Citation: 129 N.W. 288,88 Neb. 196
• Parties: COLUMBUS W. FLETCHER, APPELLANT, v. FRANK E. BREWER, APPELLEE
• Court: Nebraska Supreme Court

129 N.W. 288

88 Neb. 196

COLUMBUS W. FLETCHER, APPELLANT, v. FRANK E. BREWER, APPELLEE

No. 16,201

Supreme Court of Nebraska

January 9, 1911

APPEAL from the district court for Sherman county: BRUNO O HOSTETLER, JUDGE. Reversed.

REVERSED.

Aaron Wall, for appellant.

Robert P. Starr and W. H. Thompson, contra.

OPINION

LETTON, J.

This was an action to recover damages for breach of a written contract for the sale of real estate. The contract is in the ordinary form, save in one respect mentioned later. The defense pleaded is that at the time the contract was entered into the land was owned by one Philena Campbell who lived in Illinois; that the defendant had corresponded with her husband and negotiated with him for the purchase of the land that plaintiff knew these facts and knew that it was uncertain as to whether the premises would be conveyed by her; that it was agreed that no part of the purchase money should be paid until a deed was made by the Campbells to Fletcher and deposited in the bank at Loup City; that in pursuance of this agreement there was written in the contract the words, "when deed in bank," which meant, and was intended to mean, when the deed was executed by Campbell to Fletcher and placed in the Loup City bank; that Campbell refused to make the deed, and that plaintiff acquiesced in the refusal and abandoned the contract and has in no manner complied with its conditions. The trial resulted in a judgment for the defendant, from which plaintiff appeals.

Plaintiff complains that the court erred in admitting oral evidence for the purpose of varying the terms of the written contract, in giving paragraphs 5, 6 and 7 of the instructions, and in refusing to give paragraphs 2, 3 and 4 of the instructions requested by the plaintiff. For convenience we will consider these complaints in inverse order.

The rule has long been established in this court that parties complaining of errors at the trial must point them out specifically to the district court in the motion for a new trial. Where a general assignment is made that the court erred in giving a group of instructions, it is not error for that court to overrule the motion for a new trial if any one of the instructions in the group has been properly given. Johnston v. Milwaukee & Wyoming Investment Co., 49 Neb. 68, 68 N.W. 383. It is clear that several of the instructions given were correct statements of the law, and hence the assignment of error is not well taken.

Coming now to the instructions requested by the plaintiff and refused. This error was also assigned en masse in the motion for a new trial; but, since we are satisfied that the court erred in refusing to give each and all of them, the assignment was sufficient. By the first of the instructions requested and refused the jury were told that the contract was unconditional, that the defendant was thereby bound to convey the title, and that if he failed to perform he would be required to answer in damages to the extent of the plaintiff's loss; the second told the jury that Brewer had a right to enter into the contract even if he knew he was not the owner of the real estate at the time of making it, and that the title was in another; and the third, that the law recognizes in Brewer the right to presume he would be able to acquire the title to the land in time to enable him to fulfil his contract, and that if he has contracted to convey and fails to fulfil his contract he will be liable in damages the same as if he had been the actual owner of the title at the time. No instructions given by the court covered these points, and they should have been given to the jury. By instruction No. 5, given on its own motion, the court apparently made plaintiff's recovery depend upon whether the jury believed that the contract was an unconditional one. We think it was the duty of the court to construe the contract, and to direct them as the plaintiff requested in this respect.

The plaintiff further complains of error in the admission of evidence. At the trial plaintiff testified to a conversation with respect to the time of payment of the $ 500. When the defendant came to the stand he testified...