Lichty v. Clark

• Decision Date: 29 September 1880
• Parties: LICHTY v. CLARK.
• Court: Nebraska Supreme Court

10 Neb. 472

6 N.W. 760

LICHTY

v.CLARK.

Supreme Court of Nebraska.

Filed September 29, 1880.

Error to the district court of Richardson county. Tried below before Weaver, J.Isham Reavis and E. W. Thomas, for plaintiff.

George P. Uhl and Amos E. Gantt, for defendant.

MAXWELL, C. J.

This is an action of forcible entry and detention. It appears from the bill of exceptions that in January, 1879, the plaintiff represented to a tenant of the defendant that he had purchased from the defendant, Clark, the north-east quarter of section 5, township 1, range 16, in Richardson county, then in possession of the tenant, and induced him to surrender the possession. Proceedings to oust the plaintiff in error from the possession of the premises were instituted before a justice of the peace in December, 1879, and judgment rendered in his favor. The district court reversed the judgment of the justice and rendered judgment in favor of the defendant in error. The plaintiff herein brings the cause into this court by petition in error. The first question to be determined is, did the district court err in reversing the judgment of the justice of the peace?

On the trial of the cause before the justice the following letter was read in evidence:

“FALLS CITY, NEB., Monday, January 27, 1879.

J. W. Clark, Esq., Cincinnati, Ohio--DEAR SIR: Mr. Smith (defendant's agent) asks me to write to you. He has told you of Mr. Fox (the tenant) moving to his house and I moving where Fox lived. Smith asks if this is done as a dare to you, to which I answer emphatically, no. I have no means nor disposition to litigate. When you come west I will buy your claim or vacate. If you will not take my house in the trade I must ask time till April 1st before I am ready to buy. Should we fail in a bargain, I would sell you the Reavis claim, which I now own, and try to rent the farm from you till I am able to buy. I want the farm if we can agree on the price. The piece of land suits me, and I hope to buy it out amicably; but, as I said, I can't pay money until April 1st next. Truly yours,

SAM LICHTY.”

To this letter Clark, on the twenty-eighth of March of that year, returned an answer, saying in substance that the letter from Lichty was the first intimation that he had received that Lichty had moved on to the farm; that the farm had been in charge of one Smith, an agent of Clark, and that he had notified Fox (the tenant) in the fall of 1878 that he must surrender the possession of the farm in the spring of 1879, and asking Lichty to give his (Clark's) son possession of the place. The plaintiff having introduced in evidence before the justice a notice to quit, served upon Lichty on the second of December, 1879, also offered in evidence a notice to quit served upon him on the ninth day of June of...