Hale v. Sheehan

• Decision Date: 16 June 1897
• Citation: 71 N.W. 1019,52 Neb. 184
• Parties: HALE v. SHEEHAN.
• Court: Nebraska Supreme Court

52 Neb. 184

71 N.W. 1019

HALE

v.SHEEHAN.

Supreme Court of Nebraska.

June 16, 1897.

Syllabus by the Court.

1. An unauthenticated bill of exceptions will not be considered.

2. A practical construction placed upon an ambiguous contract by the parties will generally be adopted by the courts.

3. One who refuses to perform his part of a contract cannot recover for a breach by the other party.

Error to district court, Madison county, Jackson, Judge.

Action by D. A. Hale against D. J. Sheehan. Judgment for defendant. Plaintiff brings error. Affirmed.W. E. Reed, for plaintiff in error.

Powers & Hays, for defendant in error.

NORVAL, J.

The petition filed in the court below alleges, substantially, that plaintiff and defendant during the summer and fall of 1889 were partners engaged in the buying and selling of horses under the firm name of Hale & Sheehan,--plaintiff furnishing the capital for the enterprise, and the defendant his services and skill,--the profits and losses to be shared equally; that on the 15th day of October there were 61 head of horses and 16 suckling colts belonging to the firm on the ranch of the defendant, in Fremont county, Wyo., and on said date the partnership was dissolved, and a settlement between the partners was had, whereby defendant was to retain possession of the horses for a specified time, and receive as his share of the profits from the venture the sum of $425; that an agreement was then entered into between plaintiff and defendant, of which the following is a copy: “This agreement, made and entered into this 15th day of October, 1889, by and between D. J. Sheehan, of the first part, and D. A. Hale, party of the second part, witnesseth: That the said D. J. Sheehan agrees to winter and care for 39 head of horses and 16 sucking colts, said horses being known as the ‘Wilson horses,’ on the ranch of D. J. Sheehan and C. P. Sheehan, in Fremont county, Wyoming; and the said D. J. Sheehan further agrees to deliver said horses and colts to D. A. Hale, or his agent, at Casper, in the stock yards of F., E. & M. V. R. R. Co., in Carson county, Wyoming, on the 15th day of May, 1890; and the said D. J. Sheehan further agrees to load on the cars of the F., E. & M. V. R. R. Co., at Casper, Wyoming, twenty-two head of horses, being the largest of the horses known as the ‘Wilson horses,’ now on the ranch of D. J. and C. P. Sheehan, in Fremont county, Wyoming; said 22 head of horses to be delivered on the cars on or before November 15th, 1889, and shipped to D. A. Hale, at Humphrey, Nebr.; and the said D. A. Hale agrees to pay or cause to be paid to the said D. J. Sheehan, in consideration of his faithful performance of the conditions foregoing, the sum of ($425.00) four hundred and twenty-five dollars, payment to be made as follows: Four hundred and twenty-five dollars to be paid to the said Sheehan or his order on the delivery of the horses at Casper on the 15th day of May, 1890; and in case the said Sheehan shall draw an amount not exceeding $200.00 on the contract from Ottis & Murphy, bankers at Humphrey, Nebr., the said D. A. Hale pay to the discount charged by said bank; provided, the said Sheehan shall not have the right to draw the said $200.00 before January 1st, 1890. It is agreed and understood that the stock referred to in this contract is more fully described as follows: Branded on right shoulder thus (:); one bay horse branded on right shoulder C H; one brown mare branded on right shoulder thus T; the sixteen sucking colts having no brand; said horses being all sizes and ages. In witness whereof, we have hereunto set our hands at Humphrey, Nebr., this 15th day of October, 1889. D. J. Sheehan. D. A. Hale. Signed, sealed, and delivered in the presence of C. D. Murphy.” The petition further alleges, in effect, that in November the defendant converted to his own use a span of black Morgan mares belonging to plaintiff, of the agreed value of $200, and that it was mutually agreed that said sum should be applied by the defendant as part payment on said contract; that the time for the delivery of the horses was, by agreement of the parties, extended to June 15, 1890; that 22 head of horses defendant delivered to plaintiff as provided in said contract; that on said last-named date plaintiff, at the expense of $35, went to Casper, Carson county, Wyo., to receive from the defendant the remainder of plaintiff's stock horses, and to perform all the conditions of said contract on his part to be kept, yet defendant failed, neglected, and refused to deliver to plaintiff said horses, which were of the value of $2,000, but converted the same to his own use. The answer of the defendant admits the settlement and the execution of the contract as set forth in this petition; denies all the other averments in plaintiff's pleading, and alleges substantially that defendant entered immediately upon the performance of the contract, by taking charge of, herding, feeding, and caring for said horses in a good, husband-like manner, and continued so to do for the period of time mentioned in...