Householder v. Nispel

• Decision Date: 16 November 1923
• Docket Number: 22585
• Citation: 195 N.W. 932,111 Neb. 156
• Parties: ARTHUR M. HOUSEHOLDER, APPELLEE, v. PETER E. NISPEL ET AL., APPELLANTS
• Court: Nebraska Supreme Court

195 N.W. 932

111 Neb. 156

ARTHUR M. HOUSEHOLDER, APPELLEE, v. PETER E. NISPEL ET AL., APPELLANTS

No. 22585

Supreme Court of Nebraska

November 16, 1923

APPEAL from the district court for Webster county: LEWIS H BLACKLEDGE, JUDGE. Affirmed.

AFFIRMED.

Bernard McNeny, James S. Gilham and Stiner & Boslaugh, for appellants.

F. J Munday, contra.

Heard before LETTON, ROSE and GOOD, JJ., SHEPHERD, District Judge.

OPINION

GOOD J.

This is an action by a vendee to recover damages for a breach of contract for the sale of land. Plaintiff had the verdict and judgment thereon, and defendants have appealed.

On October 6, 1917, plaintiff and defendants entered into a written contract, by the terms of which defendants sold and agreed to convey to plaintiff, on or before March 1, 1918, the west half of section 9, township 14, range 44, in Deuel county, Nebraska, for a consideration of $ 28,000. At the making of the contract plaintiff paid $ 4,000 of the purchase price and agreed to pay $ 12,000 on March 1, 1918, and to then secure the remainder by a mortgage upon the land. At the time of the making of the contract defendants did not own the land and plaintiff was so informed. The land, in fact, was owned by Ritchie and Townsend, but plaintiff had no knowledge of the names or residence of the owners. The following clause was inserted in the contract: "It is further agreed that this sale is made subject to approval of owner." On October 17, 1917, the defendants entered into a contract with one Rhodes, whereby they sold and agreed to convey to him 800 acres of land in Deuel county, which included the land they had previously sold to plaintiff. On October 22, 1917, defendants entered into a contract with Ritchie and Townsend, whereby the former purchased from the latter the 800 acres of land which they had contracted to sell to Rhodes. On or about the 1st of November, 1917, the defendants sent a check to plaintiff for $ 4,000, which he received and cashed. Prior to March 1, 1918, title to the land in question was conveyed to said Rhodes.

Plaintiff in his petition sets forth the foregoing facts and alleges that defendants, by the contract entered into, impliedly agreed to use their best efforts to induce the owners of the land to approve the contract of sale to plaintiff, but that defendants never presented said contract of sale to the owners of the land, nor informed them thereof; that, for the purpose of inducing plaintiff to accept a return of the $ 4,000 which he had paid, defendants falsely and fraudulently represented to him that they were unable to procure the approval of the contract by the owners of the land; that said owners had sold it to other parties, so that the contract could not become binding; that, relying upon such representations, he accepted the return of the $ 4,000 previously paid, and did not tender further compliance with the terms of the contract because he did not discover the fraud practiced upon him until "towards the spring of 1919;" that because of the fraud practiced plaintiff's assent to the abandonment of the contract was not binding upon him. He claims damages for the loss of his bargain in the sum of $ 6,400.

The defendants admit the making of the contract, the payment of $ 4,000 by plaintiff and the return thereof to plaintiff, and deny all the other allegations of the petition, and for affirmative defenses they allege that on the 6th of October, 1917, defendants were authorized to sell all of section 9, and the northeast quarter of section 8, in township 14, range 44, but were not authorized to sell any less quantity than the whole of the 800-acre tract; that at that time negotiations were pending between defendants and the owners, whereby they were expecting to acquire title to said 800 acres of land by trading in therefor, as part payment, a 320-acre tract of land owned by them; that Ritchie and Townsend, the owners of said 800-acre tract, were not willing to trade unless a purchaser could be found for the half section of land which defendants desired to exchange as a part of the purchase price; that the owners of the 800-acre tract had a prospective purchaser for said 320-acre tract; that at the time of the making of the contract with plaintiff all of these facts were made known to him, and the clause in the contract, "This sale is made subject to approval of owner," was understood and agreed and intended by the parties to refer to the negotiations between defendants and the owners of the land for the purchase thereof by defendants. They allege that they put forth every effort possible to complete the purchase of the 800-acre tract under the negotiations pending between them and the owners thereof, but were unable to do so, and that by reason thereof the contract never became operative or effective. For a second defense, defendants allege that on the 11th of October, 1918, an accord and satisfaction was entered into between plaintiff and defendants for the release of all claims on the part of the plaintiff against the defendants, including the claim for damages by reason of the alleged breach of the contract, by virtue of which agreement they paid to plaintiff the sum of $ 200, which he accepted in full payment and release of all claims against the defendants. The reply admits the receipt of $ 200 in October, 1918, but alleges that it was in settlement of other matters, and did not refer to plaintiff's claim for damages for breach of the contract, and denies all the other allegations of the answer. The jury returned a verdict for plaintiff in the sum of $ 2,400.

Defendants' first assignment of error is that the petition does not state a cause of action. They argue that the contract was a conditional one, depending upon the will of a third party the owner of the land, whose assent to the contract of sale was never obtained; that before the time had arrived for the performance...