Latson v. Buck
| Decision Date | 23 May 1910 |
| Docket Number | 16,474 |
| Citation | 126 N.W. 760,87 Neb. 16 |
| Parties | ELLA E. LATSON, APPELLANT, v. OLIVE D. BUCK ET AL., APPELLEES |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Douglas county: WILLIAM A REDICK, JUDGE. Reversed.
REVERSED.
John C Wharton and Byron G. Burbank, for appellant.
Smyth Smith & Schall, contra.
This cause is submitted as under rule 2 of this court, which is to the effect that when counsel can agree upon a printed abstract of the record and evidence, and file their briefs, the case can be heard in advance without waiting for the cause to be reached in its regular order. In the preparation of the case counsel have misapprehended the rule, and have printed, practically, the whole record. The "abstract" presented consists of a full copy of the petition, the answer, the reply, the evidence, the objections thereto, the ruling of the court sustaining the objections, the decree, the notice of appeal, the supersedeas bond, the stipulation, and the assignment of errors. The history of the case, in so far as was necessary to be presented here, is that plaintiff filed her petition, and when she offered her evidence the defendant objected on the ground that the petition did not state facts sufficient to constitute a cause of action, and that the evidence offered was incompetent, irrelevant and immaterial. The objection was sustained, and plaintiff excepted. It will appear at once that all that was necessary to be shown by the abstract was a copy of the petition, or the substance thereof, a statement that defendants appeared and answered, that the case came on for trial, and when plaintiff offered her evidence the objection was made, stating the grounds, the ruling of the court thereon, and the final dismissal of the case. All other parts of the record are shown in the transcript filed in this court and need not be contained in the abstract. If the trial had proceeded, and the evidence had been admitted, resulting in a finding against the appellant, whether plaintiff or defendant, it would then have been necessary to have abstracted the pleadings and the evidence sufficiently to present the point or points of law relied upon and to be presented; nothing more. It is not contemplated that the whole record shall be printed as in this case. This, however, does not dispense with the filing in this court of the transcript of the record and bill of exceptions. The objection to the introduction of evidence on the ground stated in this record is in effect a demurrer to the petition. Curtis v. Cutler, 7 Neb. 315. The presence of an answer can have no bearing upon what the decision should be. The petition must stand or fall according to its own strength.
It is alleged in the petition that on the 1st day of September, 1907, the plaintiff was the owner of lots 2, 3 and 4, in Tukey's subdivision of block 7, of A. S. Patrick's addition to the city of Omaha, of the value of $ 4,500; that plaintiff verbally employed the defendant David R. Buck to effect a sale thereof at that price in cash or exchange for other property; that he entered upon said employment as her agent, and, after having sought to sell or exchange said real estate, submitted to plaintiff a proposition for an exchange of her said property for a certain farm in Sarpy county (describing the same), owned by Thomas B. Holman, the terms of which were that she should convey her said property to Holman and pay him $ 1,500 in cash, and Holman convey to her the farm referred to, subject to a school land contract amounting to $ 568.62; that Buck informed her that Holman would make the exchange on said terms; that they were the best terms that Holman would make for the exchange of their properties; that Holman did not want the lots owned by plaintiff, and would take them only on condition that he (Buck) would exchange some land he had in Colorado therefor, and which he had agreed to do, and assuring plaintiff that said terms were the best that Holman would make, and that he advised plaintiff that it would be for her best interest to accept said proposition; that plaintiff did not meet Holman during said negotiations; that the same were wholly with Buck, upon whom plaintiff relied and whose statements she believed, having no other knowledge or information; that so relying, and by reason thereof, she, on the 26th day of October, 1907, entered into a written contract for said exchange, a copy of which is set out at length in the petition, but which is too long to be here repeated. It must be sufficient to say that it bears date October 26, 1907, and states that it is an agreement "between Thomas B. Holman of Stratton, Colorado, party of the first part, and Ella E. Latson of Omaha, Nebraska, party of the second part." After the agreement of Holman to sell and convey the lands in Sarpy county (describing it by government subdivisions) is stated, it is recited that The contract further stipulates for abstracts of titles, each party to pay all taxes due on the property to be transferred, the deal to be closed and finished as soon as abstracts showing perfect titles and deeds are made. There are other provisions of an unimportant character which we need not notice. The contract closes in the usual form, and is signed
It is further alleged in the petition that Holman was willing to sell his farm to plaintiff for $ 2,500 in cash, subject to a balance of $ 568.62 unpaid upon a school land contract of which Buck had knowledge at all times during said negotiations, at the time of the signing of the contract, the exchange of the properties, and the payment of the $ 1,500 in cash paid by her, but he purposely and intentionally concealed the same from plaintiff, and at all times intended thereby to defraud plaintiff; that he never agreed with Holman to, and never did, exchange any Colorado or other lands, or thing of value, with said Holman for the lots owned by plaintiff; that Holman never knew of the terms of the contract entered into, never saw it, or knew that there were any provisions therein relating to the lots owned by plaintiff, never made nor authorized D. R. Buck & Son, or the said David R. Buck, to make it; that he never purchased said lots of plaintiff or owned them, or knew of them prior to the exchange of properties, but that the same and all its terms were concealed from him by defendant for the fraudulent purpose of defrauding plaintiff; that on the 14th day of November, 1907, plaintiff, at the request of David R. Buck did cause her said lots to be conveyed to the defendant Olive D. Buck, the wife of the said David R. Buck; that the said Buck told plaintiff that he had conveyed his Colorado lands to Holman; that Holman was to convey the plaintiff's lots to him, but that to save the making and recording of one deed for plaintiff to cause the conveyance of her lots to be made direct to his said wife, Olive D. Buck, which plaintiff did, and in so doing she relied wholly upon the statements made by said Buck, believing the same to be true, when, in fact, they were false and fraudulent, and made for the purpose of defrauding her out of said lots and getting them for his...
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