Haines v. Spanogle

• Decision Date: 07 July 1885
• Citation: 24 N.W. 211,17 Neb. 637
• Parties: SAMUEL K. HAINES, APPELLANT, v. ANDREW J. SPANOGLE ET AL., APPELLEES
• Court: Nebraska Supreme Court

24 N.W. 211

17 Neb. 637

SAMUEL K. HAINES, APPELLANT, v. ANDREW J. SPANOGLE ET AL., APPELLEES

Supreme Court of Nebraska

July 7, 1885

APPEAL from the district court of Hamilton county. Heard below before NORVAL, J.

Reversed.

J. H Smith, for appellant.

Hainer & Kellogg, for appellees.

OPINION

MAXWELL, J.

This is an action to enforce the specific performance of a verbal contract for the west half of the south-east quarter of section twenty-three, in township ten north, range eight west, in Hamilton county. On the trial of the cause in the court below the issues were found in favor of the defendants and the action dismissed. The plaintiff appeals.

It appears from the testimony that the parties were formerly residents of Pennsylvania; that about the year 1876 one or both of the defendants visited this state, and both removed here in 1879. The plaintiff seems to have been in the employment of one or both of the defendants, and came with them in charge of their horses. Prior to removing to this state the defendants seem to have promised the plaintiff to aid him in procuring a piece of land. The defendants purchased a tract of land of the Union Pacific Railway Company at $ 4 per acre, and apparently in pursuance of their promise to the plaintiff agreed to let him have the land above described at $ 5 that being the price they considered land of that kind to be worth.

There seems to have been a dispute between the parties as to the price, the plaintiff insisting that he was to have the land at cost price ($ 4 per acre), while the defendants contended that $ 5 per acre was the average cost price of that quality of land. The plaintiff afterwards assented to the price asked. In the year 1880 or 1881 the plaintiff broke up, as he testifies, about twenty acres of the land in question, and so far as appears had the exclusive possession. In the fall of 1881 one of the defendants presented a contract to him to sign which the plaintiff afterwards returned without signing, the principal objection to it being the clause providing for forfeiture in case of default. The plaintiff continued in possession cultivating the land until and including the year 1883. On the 2d of April, 1883, the defendant, Samuel Spanogle, presented a mortgage upon the land in question, duly prepared for the plaintiff and his wife to sign and acknowledge, and return to him. This mortgage was to secure a note for $ 75 to be given by the plaintiff to the defendants, due on the 1st of December, 1883, with interest at ten per cent; one note for $ 75 with interest at ten per cent due on the 1st day of July 1884; and one note for $ 72 due on or before January 1st, 1885, with interest at ten per cent. These notes and the mortgage were all dated by Samuel Spanogle April 2, 1883, and drew interest from that date. The plaintiff testifies that when Spanogle presented the notes and mortgage to him to execute that he, Spanogle, said he, the plaintiff, could execute the notes and mortgage and return them to the defendants "any time whenever it suited me," and all the testimony shows that no definite time was fixed. On the 2d of April, 1883, the plaintiff and defendant Samuel Spanogle had a settlement, and it was found there was due from the defendants to the plaintiff the sum of $ 50.35 with which he was credited as the first payment. Of this sum $ 45 was interest upon monthly balances due the plaintiff from the defendants for labor performed by him for them, showing that he must have been in their service for a long time. And we infer from reading the testimony that a very friendly feeling existed between the parties until this difficulty occurred, and a desire on the part of the defendants to aid the plaintiff in procuring a home. In such cases there is liable to be more laxity in making the contract, and perhaps in its enforcement, because each party trusts more or less to the sense of honor of the other. In this case this is shown in the delay in making the deed, notes, and mortgage, and which, under all the circumstances, is not unreasonable. The plaintiff executed the notes and mortgage early in July, 1883, but did not tender them to the defendants till the 30th of that month, when they refused to receive them, claiming that the contract was canceled. It is claimed, too, that the defendant, A. J. Spanogle did not make the contract or give his assent to it. The testimony,...