McCleneghan v. Powell
| Decision Date | 04 December 1920 |
| Docket Number | 21117 |
| Citation | 180 N.W. 576,105 Neb. 306 |
| Parties | JOSEPH MCCLENEGHAN, PLAINTIFF, v. CHARLES A. POWELL ET AL., APPELLANTS: CLIFFORD MCCLENEGHAN, APPELLEE |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Douglas county: ALEXANDER C TROUP, JUDGE. Modified, and reversed in part, with directions.
Judgment against the defendants Powell reversed, with directions.
Murphy & Winters, for appellants.
William R. Patrick, contra.
Joseph McCleneghan, plaintiff, was the owner of a real estate mortgage that he foreclosed on 149 acres of land in Douglas county. The land was owned by Charles A. Powell subject to the life estate of his mother, Elizabeth Powell. As party defendants plaintiff joined Charles A. and Catherine Powell his wife; Elizabeth Powell, his mother; Emil Walstat, tenant then in possession under a five-year lease; First State Bank of Alliance; and Clifford McCleneghan, plaintiff's son. The issues in the present case are raised solely by the cross-petition of Clifford McCleneghan, the answer of the Powells thereto, and the cross-petitioner's reply.
In his cross-petition Clifford McCleneghan prayed for specific performance of a contract for the purchase of the land in suit from the Powells, alleging that he, as vendee, and the defendants, Charles A. Powell and Elizabeth Powell, his mother, as vendors, entered into a contract May 22, 1917, by the terms whereof he agreed to buy and the Powells agreed to sell and convey the land to him, free of incumbrances, for $ 21,000, of which $ 1,000 was paid at the time, the deferred payment of $ 20,000 to be made March 1, 1918, and possession of the land to be given on that date. Sometime before March 1, 1918, the Powells informed McCleneghan that they could not deliver possession of the land at the time agreed upon, namely March 1, 1918, because defendant Emil Walstat was in possession under a lease from Mrs. Elizabeth Powell that would not expire until March 1, 1921. Subsequently, however, the cross-petitioner obtained title and possession March 1, 1919, so that the controversy herein as to the respective rights of the parties growing out of possession, rentals, and interest on the deferred purchase price, has to do with the year beginning March 1, 1918, and ending March 1, 1919.
Cross-petitioner McCleneghan alleged that he sustained damages because of the Powells' failure to convey the land and deliver possession March 1, 1918, as the contract provided. For the damages so alleged the court found the rental value to be $ 1,492.50 from March 1, 1918, to March 1, 1919, and for this sum judgment was rendered against the Powells. On February 13, 1919, the court decreed specific performance, and in a supplemental decree, on April 23, 1919, found and decreed that the Powells were not entitled to any interest on the unpaid purchase money from March 1, 1918, until February 25, 1919, that being the date when the remainder of the purchase money was paid into court by cross-petitioner Clifford McCleneghan. The defendants Powell appealed.
Cross-petitioner McCleneghan alleged, and the Powells denied that the annual rental value of the land in suit was $ 1,500, and that he sustained damages in that sum because of the failure of the Powells to convey the land and deliver possession March 1, 1918, as the contract provided. With respect to rental value, Joseph McCleneghan testified on the part of the cross-petitioner that he lived in the vicinity of the land in suit about 29 years; that for the past 15 years he resided in Omaha, where he was engaged in the live stock commission business; that prior thereto he farmed in the Powell vicinity about 20 years; and that the rental value of the farm for the year in question was $ 10 an acre. It seems that he based his opinion in part on his own general knowledge of rental values and in part upon the rent that he said he could have obtained for the Powell farm from Gus Wedburg, who he said would have rented the land from him if it had been in his possession. Elsewhere in the record it was stipulated that Gus Wedburg, if present, would testify that he would have given $ 10 an acre rent for the Powell land for the years 1918 and 1919. It seems though that such testimony, even if produced, would have lost much, if not all, of its probative value from the fact that defendant Walstat was in possession of the land for both of those years under the Powell lease. Joseph Gibbons testified that the rental value was about $ 10 an acre; that he rented an 80-acre farm five miles away to a Mr. McCormick for $ 10 an acre. McCleneghan and Gibbons were the only witnesses called by the cross-petitioner on this question.
John Mangold testified on the part of defendants respecting the rental value for the year ending March 1, 1919. Both the cross-petitioner and the defendants Powell lay stress on his evidence. The cross-petitioner points out that, while Mangold fixed the rental value at $ 4 to $ 5, he testified that "Joe Gibbons got $ 10 per acre in 1918 for much poorer land and farther from town than the Powell farm." On this point defendants in their brief point out that, when Mangold was asked about the Gibbons land having rented for $ 10, he said it "was begging for a tenant, but that a Mr. McCormick, who had another farm, had his farm sold out from under him, and he said he had to have something to do that year, so he took a chance at it." Neither party took exception to the statements so made by the other on this point in their respective briefs.
Besides Mr. Mangold, four or five witnesses, resident in the Powell vicinity from seven to twenty years, testified on the part of the defendants respecting the rental value of the Powell farm for the year in question and fixed it at from $ 4 to $ 5 an acre. Some were tenants and some were landowners. One tenant paid $ 800 a year, beginning March 1, 1917, for a ten-year lease on 180 acres. Another paid $ 4 an acre. One of the rented tracts was separated from the Powell land by a railroad. A real estate dealer testified that $ 659 would be a fair rental value. It may be added that Mr. Walstat paid $ 650 rent for the land in question for the year ending March 1, 1919. It has been held that the selling price of land is some evidence of its value. Engel v. Tate, 203 Mich. 679, 170 N.W. 105. No reason appears in the record to show why the same principle should not apply to the rental value of the land in question. We conclude that the weight of the evidence fairly shows that the cross-petitioner's recovery should have been $ 5 an acre, that being a reasonable rental value for the Powell farm for 1919.
Joseph McCleneghan, who acted for his son in the purchase of the land, was the only...
To continue reading
Request your trial