Martin v. Hutton

• Decision Date: 06 October 1911
• Docket Number: 16,500
• Citation: 132 N.W. 727,90 Neb. 34
• Parties: WILLIAM A. MARTIN, APPELLEE, v. GEORGE W. HUTTON, APPELLANT
• Court: Nebraska Supreme Court

132 N.W. 727

90 Neb. 34

WILLIAM A. MARTIN, APPELLEE, v. GEORGE W. HUTTON, APPELLANT

No. 16,500

Supreme Court of Nebraska

October 6, 1911

APPEAL from the district court for Dawes county: JAMES J HARRINGTON, JUDGE. Affirmed.

AFFIRMED.

J. E Porter and A. W. Crites, for appellant.

A. M Morrissey and A. G. Fisher, contra.

OPINION

ROOT, J.

This is an action for money had and received. The plaintiff prevailed, and the defendant appeals.

The plaintiff formerly resided in Iowa; the defendant, a real estate agent, resides in Dawes county, Nebraska. October 2, 1906, Shell Woodard, a resident of Iowa, accompanied the plaintiff and one or more other persons from Iowa to Nebraska and introduced them to the defendant. Mr. Hutton, while exhibiting several tracts of land to the land seekers, represented to the plaintiff that a certain quarter section was not subject to entry because of a homestead filing thereon, but that he (Hutton) would secure a relinquishment of that filing for $ 2 an acre, or $ 320 all told. The defendant denies making the statement, but the proof, including his own letters, contradicts him. Hutton prepared a written contract, which was signed by both parties, by the terms whereof he agreed, for the consideration of $ 320, to secure for the plaintiff "homestead papers in legal form on the south-east quarter of section 18," etc. The plaintiff paid Mr. Hutton $ 65 in cash, gave two promissory notes for $ 80 each, and agreed to pay the remaining $ 95 shortly after returning home. The plaintiff then went before a United States commissioner and executed a proper affidavit for a homestead entry of the quarter section, and it was transmitted by Mr. Hutton to the land office. Subsequently the plaintiff paid the $ 95 to Shell Woodard's father. The defendant prayed for a judgment on the notes and for no other affirmative relief.

The court instructed the jury, in substance, that the burden was on the plaintiff to prove by a preponderance of the evidence that the false representations were made by the defendant and relied on by the plaintiff, and, if made, the plaintiff should recover the $ 65, with interest; and, if they further found by a preponderance of the evidence that Woodard had authority to collect the $ 95, the plaintiff should recover that further sum, with interest; but, on the other hand, if the plaintiff failed to establish his right to recover, they should return a verdict for the defendant for the sum of the notes, plus interest thereon.

It is first complained that the plaintiff's right of action was upon the written contract, and that certain allegations in the reply were a departure therefrom. The action is not upon the written contract, but upon the implied promise of the defendant to return the money which he secured by fraud and without consideration.

It was admitted during the trial that the quarter section was subject to entry at the time the contract was made. There was therefore no consideration for an agreement to pay for a relinquishment, nor to support the payment when made. Money thus paid may be recovered back in an action of this character. Rogers v. Walsh & Putnam, 12 Neb. 28, 10 N.W. 467; Warder, Bushnell & Glessner Co. v. Myers 70 Neb. 15, 96 N.W. 992. The plaintiff was not required, as a condition precedent to prosecuting this action, to rescind the contract. ...