Funk v. Latta

• Decision Date: 05 February 1895
• Citation: 62 N.W. 65,43 Neb. 739
• Parties: FUNK v. LATTA ET AL.
• Court: Nebraska Supreme Court

43 Neb. 739

62 N.W. 65

FUNK

v.LATTA ET AL.

Supreme Court of Nebraska.

Feb. 5, 1895.

Syllabus by the Court.

1. Evidence examined, and held sufficient to sustain the verdict.

2. In an action by a real-estate broker to recover on a special contract for procuring a purchaser, the contract having been made by one alleged to be the agent of the owner, and the authority of the agent being one of the issues, the court properly refused an instruction stating that the plaintiff was entitled to recover if he was employed by the owner, or some one acting for her, without stating that such person must be authorized to so act.

3. Certain rulings on the evidence examined, and held not erroneous.

Error to district court, Lancaster county; Hall, Judge.

Action by Ancil L. Funk against Sarah A. Latta and William S. Latta. Judgment for defendants, and plaintiff brings error. Affirmed.Atkinson & Doty, for plaintiff in error.

Webster, Rose & Fisherdick, for defendants in error.

IRVINE, C.

This was action by Funk against the Lattas to recover $2,500 alleged to be due on a special contract for procuring a purchaser for property alleged to belong to both defendants, the title to which the evidence discloses was in Sarah Latta alone. The answers are general denials, and there was a verdict and judgment for the defendants. The theory of the plaintiff on the trial was that he had been employed by Dr. Latta to produce a purchaser for the property known as the “Latta Block,” in Lincoln, at the price of $90,000, and that Dr. Latta had agreed to pay him $2,500 for such services; that he had interested one Simeon Brownell in the property, had introduced him to Dr. Latta, and that Simeon Brownell wished his son, Frank Brownell, to join him in the purchase; that accordingly Frank Brownell came to Lincoln, and a contract for the purchase of the property was entered into between Dr. Latta and Frank Brownell; that in these matters Dr. Latta was the authorized agent of his wife, Sarah Latta, or, if not originally authorized, that she had ratified his acts: that, for the purpose of avoiding the payment of the commission, she had afterwards refused to convey the property to the Brownells, but many months thereafter had conveyed it to J. H. McMurtry, who soon after conveyed to Frank Brownell and Jennie Brownell; that this circuitous method was adopted for the purpose of defeating the plaintiff in the recovery of his compensation. There is evidence tending to support this theory, but there is also evidence tending to show that Dr. Latta never entered into the contract sued upon with the plaintiff, but instead of that told the plaintiff, in effect, that he did not wish the property to go into the hands of brokers, but that if any one brought to him a person who actually purchased the property then he would pay a commission. There is also evidence tending to show that while Dr. Latta undoubtedly, with Mrs. Latta's consent, exercised considerable control over the property, still that he was without authority to...