Frenzer v. Dufrene
Citation | 58 Neb. 432,78 N.W. 719 |
Parties | FRENZER v. DUFRENE. |
Decision Date | 06 April 1899 |
Court | Supreme Court of Nebraska |
FRENZER
v.
DUFRENE.
Supreme Court of Nebraska.
April 6, 1899.
1. A man cannot allege his wife's recalcitrance, to avoid the consequence of failing to perform a lawful contract made on the assumption that she would join him in executing a conveyance.
2. “Where a party gives a reason for his decision and conduct touching anything involved in a controversy, he is estopped, after litigation has begun, from changing his ground, and putting his conduct on another and different consideration.” Ballou v. Sherwood, 49 N. W. 790, 50 N. W. 1131, and 32 Neb. 666.
3. Where stipulations of parties are dependent, and to be performed concurrently, mutual readiness to perform is an essential prerequisite to performance.
4. The doctrine of tender, as understood in cases where the relation of debtor and creditor exists, is not applicable to mutual and concurrent promises. In this class of cases, a party who has signified his readiness and willingness to perform has done all that he is required to do, until the other party is also ready and willing to perform his part of the agreement.
Error to district court, Douglas county; Blair, Judge.
Action by John N. Frenzer against one Dufrene, executrix. Judgment for defendant, and plaintiff brings error. Reversed.
Will H. Thompson, for plaintiff in error.
Howard B. Smith, for defendant in error.
SULLIVAN, J.
This action was brought by John N. Frenzer against Alfred R. Dufrene, and tried to a jury, in the district court of Douglas county. In the first count of the petition, with which alone we are concerned, it is alleged that there is due to the plaintiff from the defendant the sum of $375, on an express contract, for services rendered in negotiating with the Penn Mutual Insurance Company for a loan upon Omaha real estate. The defenses relied upon were (1) that the company did not make the loan, and was not ready to make it; and (2) the nonperformance by the plaintiff of a concurrent promise to cash a $1,500 note executed by Eugene Spotts to Julia Shaw, and by her transferred to the defendant. The reply admits that the plaintiff agreed to cash the Spotts note; avers a constant readiness on his part to perform the agreement, and notice to the defendant of that fact. The trial court was of opinion that the evidence was insufficient to warrant a verdict for the plaintiff, and peremptorily directed the jury to find against him. The court was wrong, and the judgment rendered in favor of the defendant must be reversed.
The evidence either establishes or tends to prove the following facts: The litigants reside in Omaha. The plaintiff is a real-estate and loan agent. In 1894 the defendant desired to borrow $18,000...
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