Homan v. Steele, Johnson & Co.
| Decision Date | 06 January 1886 |
| Citation | 26 N.W. 472,18 Neb. 652 |
| Parties | GEORGE W. HOMAN, PLAINTIFF IN ERROR, v. STEELE, JOHNSON & CO., DEFENDANTS IN ERROR |
| Court | Nebraska Supreme Court |
ERROR to the district court for Douglas county. Tried below before NEVILLE, J.
AFFIRMED.
G. W Ambrose, for plaintiff in error.
George B. Lake, for defendant in error.
The action is based on a subscription, of which the following is a copy:
The plaintiffs below (defendants in error) allege in their petition, in substance, that on the 17th of March, 1880, they were wholesale grocers in Omaha, and that the defendant below was the owner of certain real estate situate near lot 4, block 150, in said city; that said plaintiffs were about to erect a large and expensive building, but had not then decided on a location; that the defendant, on that day, in order to induce the plaintiffs to locate said building on lot 4, block 150, and in consideration of like agreements of and subscriptions of other parties, also lot owners or interested in real estate in said city, subscribed and promised to pay the plaintiffs the sum of $ 200 for that purpose, and that, relying upon said subscriptions, the plaintiffs located and erected said building on said lot, and have duly performed all the conditions of said contract on their part to be performed; and that after said building was completed and occupied by the plaintiffs they demanded payment of said sum, which was refused.
The answer of the defendant below admits the partnership of the plaintiffs; that the defendant was interested in certain real estate near lot 4, block 150; admits that defendant signed the contract sued on, and denies all other allegations of the petition. On the trial of the cause the court directed the jury to return a verdict for the plaintiff, which was done, and judgment rendered on the verdict for the sum of $ 248.50. In the motion for a new trial the following points were made:
1st. That the verdict is not sustained by sufficient evidence.
2d. That the verdict is contrary to law.
3d. That the court erred in refusing to give the instructions asked by the defendant.
4th. That the court erred in instructing the jury to find for the plaintiffs.
In the briefs of the plaintiff in error no mention is made of error, either in giving or refusing instructions. That ground, therefore, may be considered as abandoned. The only question, therefore, to be considered is, whether or not the evidence sustains the verdict. There is no conflict in the testimony, and it shows the following facts: That in the spring of 1880 the plaintiffs below were looking for a location; that they had three in view, viz., lot 4, block 150, a lot on the corner of 10th and Harney streets, and one on the corner of 9th and Farnam streets; that the price asked for lot 4, block 150, was $ 8,000. The lot, it seems, was owned by parties in New York, and as Mr. Johnson was going thereon business, he seems to have been authorized by his firm to purchase it, at not to exceed $ 6,500. The testimony of a member of the firm upon that point is as follows: The subscription paper upon which this action is brought was thereupon prepared by property owners, including the defendant, and signed by them; that the defendant had a livery stable immediately across the alley south of said building, and also other real estate near that point; that the plaintiffs below actually paid $ 7,700, and paid certain taxes for the lot, in all more than $ 8,000; that they erected a building thereon 66 by 128 feet, and three stories high above the basement. It is admitted that the size and appearance of the building are all that are required by the subscription paper. The testimony also shows that in October, 1880, the plaintiffs stored a quantity of canned goods and raisins in the building, and that from that time until the 15th of December, 1880, they stored more or less goods there, and sold some from that building, but that they did not complete the removal of the stock, and move their office there, until December 15, 1880.
It is claimed on behalf of the plaintiff in error that there is no mutuality in the contract, and certain cases are cited to sustain the position, which will be noticed in their order. First, Turnpike Co. v. Collins, 8 Mass. 292. In that case a recovery was defeated upon the sole ground that the promisee, the corporation, had neither accepted nor authorized the subscription.
In Academy v. Davis, 11 Mass. 113, the action failed on the grounds, 1st, That the action should have been brought by the trustees and not the corporation; and 2d, That as there was no corporation in existence when the promise was made there was no promisee.
In Academy v. Gilbert, 2 Pick. 579, nothing had been done by the promisee on the faith of the promise, and in Trustees of Hamilton College v. Stewart, 1 Comst 581, the plaintiff failed because there was "no engagement whatever upon the part of the plaintiffs or any other person to do or forbear to do anything as a consideration for the promise of the defendant." That is, it was a promise to make a gift, which not being performed, no action would lie thereon. In this case, however, the allegations of the petition are, and the proof shows, that in consequence of the promise of the defendant and others the plaintiffs were induced to purchase the lot in question and erect the building thereon. They acted upon the faith of these subscriptions, and that is a sufficient consideration. In 2 Kent Com., *465, it is said: That is, a benefit or advantage accruing to the party who makes the promise or some inconvenience or injury sustained by the party to whom the promise is made is sufficient to support a contract. Powell v. Brown, 3 Johns. 100. Carr v. Card, 34 Mo. 513. Clark v. Sigourney, 17 Conn. 511. Lawrence v. Fox, 20...
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