McGavock v. Morton
| Decision Date | 05 January 1899 |
| Parties | MCGAVOCK ET AL. v. MORTON. |
| Court | Nebraska Supreme Court |
1. A concurrence of minds is essential to the creation of a contract, unless in cases of estoppel.
2. Therefore a written instrument signed by one party, with the intention that the other shall later sign it, which is changed in any manner altering its legal effect, and by that other signed in its altered condition, does not become binding on the former, unless he learn of and ratify the change; and this, although the alteration be made by a stranger.
Error to district court, Douglas county; Scott, Judge.
Action by William B. Morton against Alexander McGavock and Leopold Doll. Judgment for plaintiff. Defendants bring error. Reversed.F. A. Brogan and Guy R. C. Read, for plaintiffs in error.
George A. Magney, for defendant in error.
McGavock and Doll, the plaintiffs in error, were sued by Morton on a contract alleged to have been made by McGavock and Doll with the city of South Omaha, whereby the defendants guarantied the payment by one Davis of laborers employed by him in grading certain streets for the city. It was alleged that the claims of certain of these laborers had been assigned to Morton. The contract sued on was tripartite. Davis agreed to do certain grading according to certain specifications, and was named as party of the second part. The city agreed to pay at a certain rate and in a certain manner, and was named as party of the first part. McGavock and Doll, who were named as parties of the third part, agreed with the city that Davis would perform his contract, and also agreed as follows: “Said parties of the third part hereby guaranty that the said party of the second part will well and truly perform the covenant hereinbefore contained to pay all laborers employed on said work; and if said laborers are not paid in full by said party of the second part, that the said party of the third part hereby agrees to pay for said labor, or any part thereof, which shall not be paid by said second party within ten days after the money for such labor becomes due and payable; and this provision shall entitle any and all laborers performing labor on the improvements to be done under this contract to sue and recover from said third parties, or either of them, the amount due or unpaid to them, or either of them, by said second party,” etc. The answer contained a general denial and several special defenses. Among the latter was a count specifically alleging that after the defendants had signed the contract, but before it had become operative by acceptance of the city, it had been, without the knowledge or consent of defendants, altered, as hereafter stated. It seems that there existed a contract between the city and Douglas county whereby the latter agreed to pay a portion of the cost of the improvement to which the contract related. It is asserted that this contract was void, but we need not consider that question. The contract sued on provided for paying Davis as follows: “And the said party of the second part further agrees that he will not be entitled to receive payment for any portion of the aforesaid work or materials until the same shall...
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Hershmax et cd. v. Stafford.
...binding on the former, unless he learn of and ratify the change; and this, although the alteration be made by a stranger." McGavockv. Morton, 57 Neb. 385; 77 N. W. 785. See, also, Sherwood v. Merritt, 83 Wis. 233; 53 N. W., 512; Pewv. Laughlin, 3 Fed. 39; The Hero, 6 Fed. 526. Hershman havi......