Gallagher v. O'Neill
| Decision Date | 04 April 1907 |
| Docket Number | 14,711 |
| Citation | 111 N.W. 582,78 Neb. 671 |
| Parties | ANDREW M. GALLAGHER, APPELLANT, v. THOMAS J. O'NEILL ET AL., APPELLEES |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Douglas county: ALEXANDER C TROUP, JUDGE. Affirmed.
AFFIRMED.
Smyth & Smith, for appellant
F. A Brogan, contra.
EPPERSON C. AMES and OLDHAM, CC., concur.
On July 21, 1903, plaintiff Gallagher was the owner of a certain lot in South Omaha. At that time defendant O'Neill was engaged in the real estate business, and, for the purposes of this decision, we assume that he became plaintiff's agent to effect the sale of the lot in question, that he purchased the property himself and did not disclose to his principal a material increase in its value, and that plaintiff, upon the discovery that defendant was the purchaser, had the right to rescind. This suit was brought for that purpose. The district court found "that the plaintiff, with full knowledge of the fact that the real estate in question was in fact purchased by the defendant O'Neill for his own use, elected to retain and use the consideration received by the plaintiff for the said conveyance, and delayed for an unreasonable length of time, without lawful excuse therefor, to demand a rescission of the said sale and a reconveyance of the said real estate, and that thereby the said plaintiff has waived and lost his right to rescind the said conveyance," and dismissed the action. Plaintiff appeals.
The facts, as we understand them, are as follows: In September 1903, plaintiff Gallagher conveyed the lot to Miss Tylee, who held the legal title in trust for her brother-in-law, the defendant O'Neill. Four or five months after the deed was executed, plaintiff was informed that defendant was the real owner of the property. About six weeks after receiving this information, Gallagher placed the secured notes given by Miss Tylee as part of the purchase price with the Packers National Bank as collateral security. In his letter to the bank is the following: The bank accepted the collateral, made the loan requested, and held the Tylee notes until the trial of this case in the court below. In May, 1904, Gallagher consulted attorneys as to his rights in the premises, but no steps were taken until June, 1905, when plaintiff's attorneys wrote O'Neill of plaintiff's contention that defendant was the real purchaser, and demanded a reconveyance or the payment of damages. This was O'Neill's first intimation that Gallagher was dissatisfied with the deal, although Gallagher had many opportunities to make known to O'Neill his dissatisfaction, if any. Gallagher had actual knowledge that O'Neill was the purchaser and owner of the property for nearly a year and a half, yet during that time he not only remained silent and made no effort to rescind the contract, but actually used the consideration received, and deposited the notes as collateral. After the property raised in value, and prior to November, 1903, plaintiff decided to sue for damages, and admits that thereafter he used the consideration received for the deed. He did not conclude to rescind the conveyance until May, 1904, and did not inform defendant of his intention to rescind until June, 1905. He contends that he did not know until a very short time before this suit was instituted that in fact the defendant was the purchaser. But the evidence above referred to, we think, refutes this contention. It appears that, when defendant responded to the letter written to him by plaintiff's attorneys and acknowledged that he was the purchaser, plaintiff did not learn that fact for the first time, but was...
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