Lamb v. Sandall
| Decision Date | 15 July 1938 |
| Docket Number | 30363 |
| Citation | 281 N.W. 37,135 Neb. 300 |
| Parties | IRIL C. LAMB ET AL., APPELLEES, v. ARCHIE W. SANDALL ET AL., APPELLANTS |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Rock county: ROBERT R. DICKSON JUDGE. Affirmed.
AFFIRMED.
Syllabus by the Court.
1. " Upon appeal of an action in equity, when the testimony of witnesses orally examined before the court on the vital issues is conflicting, this court will, while trying the case de novo, consider the fact that the trial court observed the witnesses and their manner of testifying, and must have accepted one version of the facts rather than the opposite." Rogers v. Casady, 134 Neb. 227, 278 N.W. 267.
2. " Where one employed to act as the agent for another in the purchase of real estate becomes the purchaser himself, he will be considered in equity as holding the property in trust for his principal, although he purchased with his own money subject to reimbursement for his proper expenditures in that behalf." Johnson v. Hayward, 74 Neb. 157, 103 N.W. 1058, 107 N.W. 384, 5 L. R.A.,N.S., 112, 12 Ann.Cas. 800.
3. Evidence in the record examined, and held sufficient to sustain the judgment of the trial court.
Appeal from District Court, Rock County; Dickson, Judge.
Action in equity by Iril C. Lamb and another against Archie W. Sandall and another, impleaded with the Land Bank Commissioner and others, to establish and enforce a constructive trust against Archie W. Sandall, as trustee of a trust ex maleficio, for the benefit of the plaintiffs. From a judgment in favor of the plaintiffs, Archie W. Sandall and another appeal.
Affirmed.
G. A. Forman, Jr., for appellants.
S. C. Ely, William M. Ely, Franklin L. Pierce and Philip M. Wellman, contra.
Heard before GOSS, C. J., ROSE, EBERLY, DAY, PAINE and MESSMORE, JJ., and RYAN, District Judge.
This is an action in equity to establish and enforce a constructive trust against defendant Archie W. Sandall, as trustee of a trust ex maleficio for the benefit of plaintiffs. It is based upon an alleged violation by Sandall of an alleged oral contract of agency made by and between the plaintiffs and the defendant Sandall. The other defendants derived their rights involved in the litigation by and through the defendant Sandall. The defendants Archie W. Sandall and wife, Ruth E., each filed a general demurrer to plaintiffs' petition. The general demurrers were overruled. Thereupon these defendants answered, and to their several answers plaintiffs replied.
In the district court the plaintiffs prevailed, a decree was entered in effect adjudging them to be the equitable owners of the premises in suit, and awarding further relief as prayed in their petition. From the order of the district court overruling their motions for new trial, defendants appeal.
The record discloses that the plaintiffs and defendants were neighboring ranchers. Between their respective ranches were situated about a thousand acres of land known as the Crogan ranch. It lies about half way between the ranches of plaintiffs and defendants, and adjoins both ranches. A portion of the Crogan ranch had been rented, occupied, and used by the Lambs and by the Sandalls for ten or twelve years continuously, and these parties were each desirous of purchasing at least a part thereof. This fact was mutually known to each of them.
The contention of plaintiffs as to the controversy in suit which arose with reference to this land may be summarized as follows: Plaintiffs' petition alleges that Archie W. Sandall "proposed to the plaintiffs that if they would agree to a division of said land (referring to the entire 1,000-acre tract which was then in possession of plaintiffs) between the plaintiffs and said defendant, and said plaintiffs would buy said west half of section six (6) and said northeast quarter of section seven (7) (being the 500 acres adjoining the plaintiffs' land), and would permit said defendant to buy said west half of the west half of section seven (7), and said east half of section twelve (12) (being the 500 acres adjoining the Sandall ranch), and that if said plaintiffs would agree not to make an offer for the purchase of said 1,000-acre tract of land in excess of $ 2,500, he, said Archie W. Sandall, would negotiate with the owner for the purchase of said tract at a total price of $ 2,500, and that he would purchase the said west half of section six (6) and said northeast quarter of section seven (7) for and on behalf of the plaintiffs, and the remainder of said tract for and on behalf of himself, the plaintiffs to pay one-half of said total price of $ 2,500, and one-half of any expenses incurred in making said purchase, said payment to be made at the time of the passing of the title from the owner to said plaintiffs for that part of said land which they were to buy, * * * and said defendant further proposed that he be permitted to take immediate possession of that part of said land which he would buy for himself and that the plaintiffs retain possession of that part that he was to purchase for them."
It is further alleged in this petition that these plaintiffs, believing that Sandall "would faithfully fulfil and perform his promise and agreement to purchase said land for and on behalf of the plaintiffs," accepted said offer and proposal of defendant, and agreed to all the terms and conditions thereof; that, after the making of this contract and agreement, the defendant purchased the Crogan ranch, paid for it himself, caused the title thereof to be vested in himself and his wife, Ruth E. Sandall, and repudiated and wholly failed to perform the contract of agency hereinbefore set out.
It is insisted that the evidence is insufficient to sustain a contract of agency between the plaintiffs and Sandall. To set out the evidence on this point would unduly extend this opinion, and after setting it out the most that could be urged by defendants would be that it is conflicting. All the witnesses were personally before the trial court, and that gave to that court advantages in weighing their testimony which we do not possess, and even without allowing for that advantage we should hesitate, in view of the entire record, to hold that the evidence is not sufficient to sustain the findings and decree of the district court.
It would seem that the rule reiterated in Rogers v. Casady, 134 Neb. 227, 278 N.W. 267, would, under the circumstances of this record, be applicable, viz.:
"Upon appeal of an action in equity, when the testimony of witnesses orally examined before the court on the vital issues is conflicting, this court will, while trying the case de novo, consider the fact that the trial court observed the witnesses and their manner of testifying, and must have accepted one version of the facts rather than the opposite."
It would appear, therefore, that the contention of the appellees as to the facts involved is amply supported by the proof.
On this factual basis, the contention of appellants that the oral contract in suit is void under our statute of frauds still remains for our consideration. In Stephenson v. Golden, 279 Mich. 710, 734, 276 N.W. 849, 857, the following definitions of agency are quoted with approval, viz.:
See, also, 1 Mechem, Agency (2d ed.) p. 21.
It appearing that Sandall, by an oral contract, was employed as agent for the purpose of negotiating and purchasing the three north quarter-sections of the Crogan ranch, under the terms heretofore set forth, for the plaintiffs, appellants contend that this contract is void under our statute of frauds. They cite ...
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Lamb v. Sandall
...135 Neb. 300281 N.W. 37LAMB ET AL.v.SANDALL ET AL.No. 30363.Supreme Court of Nebraska.July 15, 1938. Syllabus by the Court. 1. “Upon appeal of an action in equity, when the testimony of witnesses orally examined before the court on the vital issues is conflicting, this court will, while try......