Haffke v. Coffin

• Decision Date: 24 April 1911
• Docket Number: 16,383
• Citation: 130 N.W. 1045,89 Neb. 134
• Parties: WILLIAM HAFFKE ET AL., APPELLEES, v. H. J. COFFIN ET AL., APPELLANTS
• Court: Nebraska Supreme Court

130 N.W. 1045

89 Neb. 134

WILLIAM HAFFKE ET AL., APPELLEES, v. H. J. COFFIN ET AL., APPELLANTS

No. 16,383

Supreme Court of Nebraska

April 24, 1911

APPEAL from the district court for Douglas county: LEE S. ESTELLE JUDGE. Reversed.

REVERSED.

E. J Clements and C. E. Foster, for appellants.

C. E Herring and C. Haffke, contra.

OPINION

ROOT, J.

In December, 1907, the plaintiffs entered into a written contract to transfer "their livery and hack business located in the city of Omaha," to W. P. Thorp and Charles I. Bragg for the consideration of two quarter sections of land in Loup county. Thorp and Bragg were to convey this land to the plaintiffs, and were also to furnish "a merchantable abstract" of title; the title deeds were to be placed in escrow "until the abstract is approved by the parties of the first part."

The plaintiffs delivered their chattels to the defendant H. J. Coffin, who was interested in the transaction. They approved the abstract of title and accepted the deed for one quarter section of land, but did not approve the abstract of title or accept the deed for the other tract. Thereupon in January, 1908, the defendants executed and delivered to the plaintiffs the bond in suit, which is as follows: "Know All Men by These Presents: That H. J. Coffin, as principal, and the National Fidelity & Casualty Company, as surety, are held and firmly bound unto Charles Haffke and William Haffke in the sum of two thousand five hundred dollars ($ 2,500) for the payment of which well and truly to be made we do bind ourselves, our heirs, executors, administrators, successors and assigns, jointly and severally firmly by these presents, upon condition as follows:

"Whereas, the said H. J. Coffin has sold and agreed to convey unto said Charles Haffke and William Haffke, for the consideration of two thousand and five hundred dollars ($ 2,500) the following described premises, to wit: The north half of the northwest quarter of section twenty-six (26), and the north half of the northeast quarter of section twenty-seven (27), in township twenty-one (21) north of range nineteen (19) west of the sixth principal meridian, in Loup county and state of Nebraska; and the said Charles Haffke and William Haffke have purchased said premises, and have made payments therefor as follows: By delivering to said H. J. Coffin chattels and personal property of the agreed and stipulated value of four thousand five hundred dollars ($ 4,500), one-half of which has this day been paid.

"Therefore, the condition of this obligation is such that if the above bounden H. J. Coffin and National Fidelity & Casualty Company, of Omaha, Nebraska, will perfect the title to said premises, furnish to said Charles Haffke and William Haffke an abstract of title thereof showing a good and perfect title to said premises in the said H. J. Coffin, to be approved by Guy R. C. Read, Esquire, of Omaha, Nebraska, and will convey said premises by deed of general warranty, and clear of all incumbrances, unto the said Charles Haffke and William Haffke on or before the first day of October, 1908, then this obligation to be void, otherwise to be and remain in full force and effect."

The plaintiffs plead a breach of the bond as follows: "That default has been made in the conditions stated in said bond and defendants have failed and neglected to perfect the title to said premises, and have failed and neglected to furnish the plaintiffs an abstract of title thereof showing a good and perfect title to said premises in the said H. J. Coffin, approved by the said Guy R. C. Read; and have failed and neglected to convey said premises by deed of general warranty, clear of all incumbrances, unto the said plaintiffs, on or before October 1, 1908." There is no allegation of the value of the tract of land, nor that the plaintiffs have been damaged, but they plead that there is due them from the defendants $ 2,500, for which, with interest from October 1, 1908, and costs of suit, they pray judgment.

The defendants answered, admitting the execution of the bond; alleged that the chattels transferred by the plaintiffs in consideration for the real estate were not worth to exceed $ 1,600; that the title to the quarter section of land which had not been accepted by the plaintiffs had been perfected according to the requisitions of the plaintiffs' counsel, but that they refused to accept the deed or the abstract. The reply traverses these allegations. The cause was tried to the court, and it found that the $ 2,500 mentioned in the bond was intended by the parties as liquidated damages, and gave judgment for that sum, with interest. The defendants appeal.

Although there is no specific agreement in the bond that $ 2,500 shall be taken and considered as the amount of damages the plaintiffs will sustain for a breach of that instrument plaintiffs assert that the damages flowing from the defendants' failure to perfect title to the land are uncertain, and it is evident from an inspection of the undertaking that the parties thereto adjusted the question of damages, agreed upon the value of the land in advance of the sale, made that value of the essence of the contract, and are estopped to controvert that fact, but have irrevocably elected to pay $ 2,500 in lieu of transferring title to the land. The contract to trade contains no stipulation as to the value of either tract of land...