Johnson v. Ruhl

• Decision Date: 30 March 1956
• Docket Number: No. 33905,33905
• Citation: 162 Neb. 330,75 N.W.2d 717
• Parties: John H. JOHNSON and Lida Johnson, husband and wife, Appellants, v. Herbert E. RUHL and Frances Ruhl, husband and wife, Appellees.
• Court: Nebraska Supreme Court

Page 717

75 N.W.2d 717

162 Neb. 330

John H. JOHNSON and Lida Johnson, husband and wife, Appellants, v. Herbert E. RUHL and Frances Ruhl, husband and wife, Appellees.

No. 33905.

Supreme Court of Nebraska.

March 30, 1956.

Syllabus by the Court.

1. A general demurrer tests the substantive legal rights of the parties upon admitted facts including proper and reasonable inferences of law and fact which may be drawn from the facts which are pleaded.

2. The rules of pleading require plaintiff in a civil suit to insert in the petition a statement of the facts constituting the cause of action in ordinary and concise language.

3. The word 'facts' as used in the code of civil procedure means a narrative of the events, acts, and things done or omitted which show a legal liability of defendant to plaintiff.

4. A petition is sufficient if from the statement of facts set forth therein the law entitles plaintiff to recover.

5. A petition which fails to plead actionable facts in vulnerable to a general demurrer.

6. The purpose of pleadings is to frame the issues upon which the case is to be tried and to advise the adversary what he is called upon to meet.

7. If a contract for the sale of real estate provides that time and punctuality are material and essential ingredients in the contract, that non-payment of an installment of the purchase price shall forfeit the right of the purchaser therein, and that the vendor shall thereupon have the right to take possession of the property, such default of itself generally operates as a forfeiture, unless the contract requires notice or demand as a condition precedent to a forfeiture.

8. A stipulation in a contract for the sale of land that, in the event of default in payment of the purchase price as provided therein, the vendor shall be entitled to the possession of the premises, is valid and enforceable.

9. If a contract of that character contains a stipulation for the investiture of the vendor with the right of possession of the premises and he peaceably obtains possession thereof he may, after default of the vendee, maintain it until the purchase price is fully satisfied.

10. Restitution is not a mere right. It is ex gracia, resting in the exercise of a sound discretion, and the court will not order it where the justice of the case does not call for it.

11. If a litigant seeks to recover damages for the unlawful detention of property he must establish his right to the possession thereof during the period for which he seeks to recover and that the party against whom he seeks relief unlawfully withheld possession thereof.

Richard O. Johnson, H. B. Muffly, Lincoln, for appellants.

Cline, Williams, Wright & Johnson, Lincoln, for appellees.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE and BOSLAUGH, JJ.

BOSLAUGH, Justice.

A general demurrer of appellees to the petition of appellants was sustained. They elected not to plead further. A judgment of dismissal of the case was rendered by the district court. This appeal is from that judgment.

A general demurrer tests the substantive legal rights of the parties upon admitted facts including proper and reasonable inferences of law and fact which may be drawn from the facts which are pleaded. Central Nebraska Public Power & Irr. Dist. v. Walston, 140 Neb. 190, 299 N.W. 609; Kinney Loan & Finance Co. v. Sumner, 159 Neb. 57, 65 N.W.2d 240.

The following is the substance of the petition:

The parties made a contract in writing on October 10, 1947, by the terms of which appellees, the owners of the premises and the appurtenances described, sold and appellants bought the property therein designated for the sum of $38,000. The purchase price was required to be paid by appellants to appellees $12,000 when the contract was executed and $26,000 with interest at 5 per cent per annum in 132 installments of $256.46 each, payable on the 10th day of October 1947, and on the 10th day of each month thereafter until and including October 10, 1958. A copy of the contract was attached to and made a part of the petition. The total principal and interest paid by appellants because of the contract to June 10, 1949, was $17,385.46. The contract was performed by appellants to that date.

The facts concerning the commencement, pleadings, proceedings, findings, and judgment in an ejectment action brought by appellees against appellants in the district court on September 2, 1949, were stated. The court found in that case that appellants had paid $12,000 and the monthly installments required to and including the one due June 10, 1949, on the purchase price of the property; that appellants were entitled to a credit on the purchase price of $989 damages because of misrepresentations made by appellees as to the condition of the property at the time it was sold and bought as alleged in the cross-petition of appellants; that there was due and unpaid to June 1950 on the purchase price and $105.89 for insurance a total of $2,194.41. The court ordered that if appellants failed to pay for 60 days the amount found due appellees or failed to pay delinquent taxes on the property appellees would be entitled to immediate possession of it. The findings and decree were rendered by the district court on June 1, 1950. Appellees made application to the district court for a writ of assistance to put them in possession of the property. Appellants on November 7, 1950, surrendered the premises to appellees and they have since had the possession and use of them to the exclusion of appellants who have since received nothing from the property.

Appellants appealed from the findings and judgment of the district court of June 1, 1950. It was found by this court that this allowance to the appellants on the purchase price of the property by the trial court was not contested by appellees and that the effect of the credit was that at the time appellees sought to terminate the contract and brought the ejectment action on September 2, 1949, appellants were entitled to a credit on the purchase price in excess of the delinquencies pleaded. The judgment of the district court was reversed and the cause was remanded for further proceedings consistent with the opinion. Ruhl v. Johnson, 154 Neb. 810, 49 N.W.2d 687.

The district court thereafter upon consideration of the opinion of this court and the mandate found that at the time the ejectment case was brought on September 2, 1949, appellants were not in default in their performance of the contract because of the credit of $989 due them from appellees; and that appellees were not then entitled to cancel the contract and because thereof the petition of appellees in the ejectment case should be dismissed. The district court then adjudged that the $989 should be and that it was credited on the purchase price of the property as stated in the contract of October 10, 1947, and that the petition and cause of action of appellees should be and they were dismissed and the costs were taxed to appellees.

The prayer of the petition is: That an account be taken of the receipts and profits of the premises received by appellees during the time they have been in the possession of the premises and that appellants have judgment therefor; that an account be taken of the personal property on the premises from the time appellants vacated and surrendered them and that they have judgment for all personal property sold, disposed of, or destroyed since appellees took possession of the property; and that judgment be rendered against appellees for $5,000 as damages sustained by appellants because of the wrongful withholding of the premises by appellees from appellants and for costs of suit and general equitable relief.

The correctness of the action of the trial court in sustaining the demurrer of appellees to the petition of appellants is challenged by them on the basis that the phrase 'cause of action' does not mean the formal statement of facts set forth in the petition but the subject matter upon which the appellants ground their right to relief against appellees. The doctrine to which appellants refer is correctly stated by them. Myers v. Moore, 78 Neb. 448, 110 N.W. 989; Zelen v. Domestic Industries, 131 Neb. 123, 267 N.W. 352. However, it is not significant or helpful in deciding the matter at issue in this case. A cause of action and the pleading of a cause of action are separable and distinguishable. Appellants are required by the code of civil procedure to make in their petition a statement of facts constituting the cause of action upon which they seek relief in ordinary and concise language. Section 25-804, R.R.S.1943.

In Ferson v. Armour & Co., 109 Neb. 648, 192 N.W. 125, this court declared: 'The rules of pleading require a plaintiff in a civil suit to insert in the petition 'a statement of the facts constituting the cause of action, in ordinary and concise language, and without repetition.''

The word 'facts' as used in the code means a narrative of the events, acts, and things done or omitted which show a legal liability of the defendant to the plaintiff. A petition is sufficient if from the statement of facts the law entitled plaintiff to recover thereon. Rhoads v. Columbia Fire Underwriters Agency, 128 Neb. 710, 260 N.W. 174. It is unimportant how meritorious a cause of action a litigant may have. It cannot avail him anything if ...