Frenzer v. Dufrene

CourtSupreme Court of Nebraska
Writing for the CourtSULLIVAN
Citation58 Neb. 432,78 N.W. 719
Decision Date06 April 1899
PartiesFRENZER v. DUFRENE.

58 Neb. 432
78 N.W. 719

FRENZER
v.
DUFRENE.

Supreme Court of Nebraska.

April 6, 1899.



Syllabus by the Court.

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.

[78 N.W. 719]

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, to be used in the construction of buildings upon real estate owned by him. The plaintiff proposed to negotiate the loan for a commission of 2 1/2 per cent. The defendant accepted the proposition, and his application for an $18,000 loan, to be secured by a real-estate mortgage, was soon after forwarded to the Penn Mutual Life Insurance Company, at Philadelphia. The company declined to loan $18,000, but offered to loan $15,000. This offer was eventually accepted, in connection with an agreement on the part of Frenzer to cash the Spotts note, and thus enable Dufrene to obtain at once the sum of $16,500, to use in the construction of his buildings. The application to the loan company provided that the principal and interest of the loan should be paid, “at the option of the lender, in gold coin of the present standard of weight and fineness, or its equivalent.” There was some delay in consummating the transaction, owing principally to apparent infirmities in defendant's title to the property offered as security, so that, before the bond and mortgage were ready for execution, Frenzer, in fulfillment of a prior engagement, was obliged to make a trip to the state of California. In his absence, his clerk, Mr. Grocox, was authorized to act for him. About April 10th the bond and mortgage were prepared, and handed to the defendant for examination. He made some objection on account of the gold clause, but a day or two later handed the papers to Mr. Grocox, to be sent to the loan company for examination and approval. The...

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23 practice notes
  • Portner v. Tanner, 1060
    • United States
    • United States State Supreme Court of Wyoming
    • 17 Julio 1923
    ...C. 893.) A violation of contract by one party relieves the other party, (6 R. C. L. 377; 3 Elliott contracts 2045; Frenzer v. Dufrenne, 78 N.W. 719; Armsby Co. v. Harbor Co., 123 P. 32.) There was no consideration for the checks and plaintiff did not tender performance by offering possessio......
  • Swanson v. Madsen, No. 31824.
    • United States
    • Supreme Court of Nebraska
    • 6 Abril 1945
    ...a deed. Plaintiff had obligations of performance as well as defendant. This court dealt with such a situation in Frenzer v. Dufrene, 58 Neb. 432, 78 N.W. 719, wherein it was held: ‘Where stipulations of parties are dependent, and to be performed concurrently, mutual readiness to perform is ......
  • State ex rel. Seth Thomas Clock Co. v. Comm'rs of Cass Cnty.
    • United States
    • Supreme Court of Nebraska
    • 19 Septiembre 1900
    ...now be regarded as a settled rule of law of this court. Ballou v. Sherwood, 32 Neb. 666, 49 N. W. 790, 50 N. W. 1131;Frenzer v. Dufrene, 58 Neb. 432, 78 N. W. 719;Railway Co. v. McCarthy, 96 U. S. 258, 24 L. Ed. 693. It is urged by the respondents that after a general reversal upon an appea......
  • Hilmer v. W. Travelers' Accident Ass'n, No. 15,819.
    • United States
    • Nebraska Supreme Court
    • 10 Marzo 1910
    ...ground and defend upon entirely different consideration. Ballou v. Sherwood, 32 Neb. 666, 49 N. W. 790, 50 N. W. 1131;Frenzer v. Dufrene, 58 Neb. 432, 78 N. W. 719;State v. Board of County Commissioners, 60 Neb. 566, 83 N. W. 733;First State Bank of Overton v. Stephen Brothers, 74 Neb. 616,......
  • Request a trial to view additional results
28 cases
  • Portner v. Tanner, 1060
    • United States
    • United States State Supreme Court of Wyoming
    • 17 Julio 1923
    ...C. 893.) A violation of contract by one party relieves the other party, (6 R. C. L. 377; 3 Elliott contracts 2045; Frenzer v. Dufrenne, 78 N.W. 719; Armsby Co. v. Harbor Co., 123 P. 32.) There was no consideration for the checks and plaintiff did not tender performance by offering possessio......
  • Swanson v. Madsen, No. 31824.
    • United States
    • Supreme Court of Nebraska
    • 6 Abril 1945
    ...a deed. Plaintiff had obligations of performance as well as defendant. This court dealt with such a situation in Frenzer v. Dufrene, 58 Neb. 432, 78 N.W. 719, wherein it was held: ‘Where stipulations of parties are dependent, and to be performed concurrently, mutual readiness to perform is ......
  • State ex rel. Seth Thomas Clock Co. v. Comm'rs of Cass Cnty.
    • United States
    • Supreme Court of Nebraska
    • 19 Septiembre 1900
    ...now be regarded as a settled rule of law of this court. Ballou v. Sherwood, 32 Neb. 666, 49 N. W. 790, 50 N. W. 1131;Frenzer v. Dufrene, 58 Neb. 432, 78 N. W. 719;Railway Co. v. McCarthy, 96 U. S. 258, 24 L. Ed. 693. It is urged by the respondents that after a general reversal upon an appea......
  • Hilmer v. W. Travelers' Accident Ass'n, No. 15,819.
    • United States
    • Nebraska Supreme Court
    • 10 Marzo 1910
    ...ground and defend upon entirely different consideration. Ballou v. Sherwood, 32 Neb. 666, 49 N. W. 790, 50 N. W. 1131;Frenzer v. Dufrene, 58 Neb. 432, 78 N. W. 719;State v. Board of County Commissioners, 60 Neb. 566, 83 N. W. 733;First State Bank of Overton v. Stephen Brothers, 74 Neb. 616,......
  • Request a trial to view additional results

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