Gerner v. Church

• Citation: 62 N.W. 51,43 Neb. 690
• Parties: GERNER v. CHURCH ET AL.
• Decision Date: 05 February 1895
• Court: Supreme Court of Nebraska

43 Neb. 690

62 N.W. 51

GERNER

v.CHURCH ET AL.

Supreme Court of Nebraska.

Feb. 5, 1895.

Syllabus by the Court.

1. Henry Gerner signed a contract or subscription paper agreeing to pay Edward A. Church and Henry Oliver, or order, $200, on condition they should erect, or cause to be erected, on the southwest corner of P and Thirteenth streets, in the city of Lincoln, in a time specified, an opera house covering a space of ground 100 feet front on P and 142 feet deep on Thirteenth street. The audience room and galleries of such opera house were to have a seating capacity of 1,700. The subscription was payable in installments, but all due when the opera house was completed and ready for occupancy. In a suit by Church & Oliver against Gerner on said subscription, the court instructed the jury: “By ‘seating capacity of 1,700,’ as used in said contract of subscription, is meant the capacity of said opera house to seat 1,700 auditors on permanent or temporary seats, so that they can both hear and see the exhibition given from the stage, and still leave sufficient room in the passageways for the auditors to pass to and from their seats, going in and out of the building.” Held, (1) that the instruction was correct; (2) that in order for the opera house, as constructed, to comply with the subscription contract as to seating capacity, it was not necessary that the audience room and galleries should have 1,700 fixed and permanent seats.

2. On such trial, Gerner offered to prove that the opera house constructed by Church & Oliver was erected with a trussed roof, that the outside or inclosing walls were 65 feet high and 142 feet in length, that the building was constructed without any cross walls of equal height with the inclosing walls, and that the outside walls were of an average thickness of not to exceed 17 inches. This evidence the court excluded. Gerner also offered in evidence section 513 of the Municipal Code of the city of Lincoln, in force at the time the subscription contract was made and the opera house built, and which provided that: “The outside walls of rooms having trussed roofs or ceilings such as churches, public halls, theatres, * * * If more than 15 and less than 25 feet high, shall average at least 16 inches; if over 25 feet high, at least 20 inches; if over 45 feet high, at least 24 inches in thickness: An increase of four inches in thickness shall be made in all cases where the walls are over 100 feet long, unless there are cross walls of equal height.” This evidence the court excluded. Held, (1) that the subject-matter of the ordinance was within the legislative jurisdiction of the city council; (2) that the ordinances were within the rule that the law of the place where a contract is made enters into, and becomes a part of, such contract; (3) that Gerner's contract was one of donation, and that the court cannot presume that he agreed to make this donation upon any other terms than that Church & Oliver should construct a building in accordance with the ordinances of the city in which such building was erected; (4) that the court erred in excluding the evidence.

3. On the trial, Gerner offered to testify that, at the time of signing the contract in suit, Church and Oliver promised him that the opera house should be constructed of stone in its first story; of pressed brick, with cut-stone trimmings, above the first story; and with copper cornices. This evidence the court excluded. Held, (1) that the evidence offered did not tend to explain, but to contradict and alter, the agreement between the parties; (2) that it did not tend to show that Gerner was induced by the fraud of Church & Oliver to execute the contract; (3) that there was no ambiguity in the contract; (4) that the court did not err in excluding the evidence.

4. In a suit on a written contract for a subscription payable on certain conditions mentioned in such contract, parol evidence is not admissible, in the absence of fraud, to show that the subscriptions were not to be payable except upon certain other conditions, not enumerated in the contract.

5. On the trial, Gerner introduced in evidence a writing signed by Church & Oliver, bearing the same date as the subscription paper in suit. This writing was delivered to one Marshall, and recited that he had signed a subscription paper agreeing to pay Church & Oliver $1,000 for the building of the opera house. The writing was, in effect, a modification of Marshall's contract of subscription, as it made the subscription payable when Marshall had sold certain described real estate. Gerner was then asked certain questions by his counsel which tended to elicit evidence showing that, at and before the time he signed the contract in suit, Church & Oliver represented to him that Marshallhad subscribed a similar contract for $1,000, which would be payable on the same conditions as would Gerner's subscription, if he signed it. This evidence the court excluded. Held, (1) That the evidence tended to show a material misrepresentation made by Church & Oliver to Gerner, which induced him to execute the contract in suit; (2) that the court erred in excluding the evidence.

6. It is competent for a party, when sued upon a written contract, to show by parol that he was induced to execute the contract by the fraud or material false representation of the party seeking to enforce it.

7. After the opera house was completed, and before the bringing of this suit, Edward A. Church made in writing, and delivered to Henry Oliver and one James F. Lansing, a writing, in and by which he assigned to said Oliver and Lansing “all right and interest in and to said subscriptions and donations.” The district court instructed the jury that Church & Oliver were the real parties in interest in this suit. Held, (1) that the real parties in interest in this suit are the parties entitled to the donations and subscriptions; (2) that, so far as the record showed, such parties were Henry Oliver and James F. Lansing; (3) that the court erred in instructing the jury that Church & Oliver were the real parties.

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

Action by Edward A. Church and Henry Oliver against Henry Gerner on a subscription paper. Judgment for plaintiffs, and defendant brings error. Reversed.

Webster, Rose & Fisherdick and G. M. Lambertson, for plaintiff in error.

Pound & Burr, for defendants in error.

RAGAN, C.

On the 10th day of April, 1891, Henry Gerner and a number of other parties signed and delivered to Edward A. Church and Henry Oliver a writing or subscription paper in words and figures as follows:

“Lincoln, Neb., April 10th, 1891. Know all men by these presents, that we, the undersigned, property owners in the city of Lincoln, Nebraska, hereby undertake, promise, and agree to pay to Edward A. Church and Henry Oliver, or order, the sums of money set opposite our respective names, upon the condition only that said Church and Oliver shall erect and complete, or cause to be completed, ready for occupancy, on or before January 1st, 1892, an opera-house building which shall cover a space of ground at least 100 feet front on P street, and 142 feet deep on Thirteenth street, in the city of Lincoln, Neb., to be erected at the southwest corner of said P and Thirteenth streets. Said opera house to have an audience room on ground floor with a seating capacity of not less than seventeen hundred, including seating capacity of galleries. Said opera house to have not less than two galleries, ladies' and gents' toilet rooms, and to be modern in all its appointments. Said building to have store rooms around said audience room, on ground floor. Said sums by us subscribed to be paid as follows, viz.: One-third when the walls of said building are completed to the top of third story, and floor joists laid thereon; one-third when the roof is on said building; and one-third when said building is completed, and ready for occupancy.

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                ¦Henry Gerner ¦$200.00.”¦
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This suit was brought to the district court of Lancaster county by said Edward A. Church and Henry Oliver against the said Henry Gerner, to recover the amount of the latter's subscription. Gerner interposed to the action six defenses: (1) A general denial. (2) That the audience room, including the two galleries, of the opera house erected by Church & Oliver, did not have a seating capacity of 1,700. (3) That at the time said Gerner signed said subscription, and at the time Church & Oliver erected the opera house mentioned therein, there was in force in the city of Lincoln an ordinance which provided that: “The outside walls of rooms having trussed roofs or ceilings such as churches, public halls, theaters, * * * if more than fifteen and less than twenty-five feet high, shall average at least sixteen inches; if over twenty-five feet high, at least twenty inches; if over forty feet high, at least twenty-four inches in thickness. An increase of four inches in thickness shall be made in all cases where the walls are over one hundred feet long, unless there are cross walls of equal height.” That the building mentioned in the premises, and erected by Church & Oliver, was a theater with a trussed roof, and the ceiling of the audience room was over 45 feet in height, and the walls were more than 100 feet long, and that the provisions of said ordinance were applicable to said theater or opera house, and said ordinance entered into, and became a part of, the subscription contract of said Gerner. That the opera house erected by Church & Oliver had no cross walls, as provided by said ordinance. That the outside walls of the opera house were of an average thickness of not to exceed 17 inches. (4) That Church & Oliver, to induce Gerner to execute said subscription contract, represented to him that one Whitney J. Marshall had signed a similar subscription paper, donating to them $1,000, and that he (Gerner), by executing the...