Gandy v. Cummins

• Citation: 64 Neb. 312,89 N.W. 777
• Parties: GANDY v. CUMMINS.
• Decision Date: 19 March 1902
• Court: Supreme Court of Nebraska

64 Neb. 312

89 N.W. 777

GANDY

v.CUMMINS.

Supreme Court of Nebraska.

March 19, 1902.

Syllabus by the Court.

1. Petition examined, and held to state a cause of action.

2. A judgment will not be reversed for errors required to be assigned in a motion for a new trial, unless it is alleged in the petition in error, and shown by the record, that the court erred in overruling such motion. James v. Higginbotham, 82 N. W. 625, 60 Neb. 203, followed.

Commissioners' opinion. Department No. 3. Error to district court, Pawnee county; Letton, Judge.

Action by Addison L. Cummins against James L. Gandy. Judgment for plaintiff, and defendant brings error. Affirmed.S. P. Davidson, for plaintiff in error.

Story & Story, for defendant in error.

ALBERT, C.

This is an action at law, brought by Addison L. Cummins against James L. Gandy to recover for money obtained of the plaintiff by the defendant by means of false and fraudulent representations. A trial to a jury resulted in a verdict for the plaintiff, and from a judgment rendered thereon the defendant prosecutes error to this court.

The first question relied on for a reversal is that the amended petition on which the case was tried does not state facts sufficient to constitute a cause of action. The allegations of the petition are as follows: “That heretofore, to wit, during the latter part of the year 1890, Ann Fries and John Fries, her husband, being the owners of the property known as the ‘Fries Mill Property,’ consisting of something less than a quarter section of land, together with the mill and other improvements, situated in township one north, of range twelve east, in said county of Pawnee, and state of Nebraska, did enter into a contract to sell said property for the sum of $6,500 to the plaintiff, in and about which said transaction the said defendant, James L. Gandy, represented to this plaintiff that he was the agent of the said Ann Fries, and did then and there and in that behalf represent and declare to this plaintiff that he had full and entire authority from the said Ann Fries to negotiate and enter into contracts for the sale of her interest in said real estate, and to receive the purchase money for her in that behalf; and this plaintiff, believing said statements of the said James L. Gandy, and relying upon said declarations, did negotiate with the said James L. Gandy, as agent of the said Ann Fries, for the purchase of the said real estate, and, relying upon and believing his said representations as to his being such agent of the said Ann Fries, did pay to the said James L. Gandy certain money as part of the purchase money for said premises, amounting in all to the sum of $740, which said money the said James L. Gandy received as a part of the purchase money for said real estate, and did promise, as such agent of said Ann Fries, to faithfully apply said money on the said purchase money by paying the same to the said Ann Fries, for whom he pretended to be acting when he received said money. (2) The plaintiff further alleges that the said James L. Gandy failed, neglected, and refused to pay over the said money so received to the said Ann Fries, but corruptly and fraudulently converted the same to his own use, intending and purposing thereby to defraud this plaintiff out of said money, and the said defendant did thereby defraud this plaintiff out of the said sum of $740. The plaintiff further alleges that he relied upon the statements of the said James L. Gandy that he was the agent of the said Ann Fries, and was authorized to receive said money on her behalf, and would pay the same to her; but each and all of said statements were false, fraudulent, and untrue....