McNeny v. Campbell

• Decision Date: 21 May 1908
• Docket Number: No. 15,190.,15,190.
• Parties: MCNENY v. CAMPBELL ET AL.
• Court: Nebraska Supreme Court

81 Neb. 754

116 N.W. 671

MCNENY

v.CAMPBELL ET AL.

No. 15,190.

Supreme Court of Nebraska.

May 21, 1908.

Syllabus by the Court.

Where an agent negotiates a sale of real estate for the broker with whom the purchaser makes a contract, he is not for that reason liable jointly with the vendor for a return of the purchase price paid, in a case where the vendor fails to make the conveyance.

Where one is so situated with reference to a tract of land that he can acquire the title thereto either by the voluntary act of the parties holding the title, or by proceedings at law or in equity, he is in a position to make a valid agreement for the sale thereof; and, where he does make such agreement, the fact that the purchaser understood him to be possessed of the legal title does not constitute a ground for rescission of the contract, especially where it appears that such purchaser did not rely upon the existence of the legal title in the vendor.

To authorize summons to another county in a merely personal action for money, there must be an actual right to join the resident and nonresident defendants.

Commissioners' Opinion. Department No. 2. Appeal from District Court, Webster County; Adams, Judge.

Action by Bernard McNeny against Ambrose S. Campbell and others. Judgment for plaintiff, and Campbell and Burke appeal, and Allen H. Carpenter files a cross-appeal. Reversed and remanded.P. W. Scott and C. W. Meeker, for appellants Campbell and Burke.

E. U. Overman and Bernard McNenny, for appellee.

L. H. Blackledge, for cross-appellant.

CALKINS, C.

The defendants Burke & Campbell were real estate dealers and brokers at Imperial in Chase county. The defendant Carpenter, who resided in Red Cloud in Webster county, was engaged in the business of selling lands in Chase county, soliciting purchasers in the locality of his residence and accompanying them to the western part of the state, sometimes co-operating with the local agents. He was not a member of the firm of Burke & Campbell, but had received commissions from them in cases where he had found buyers for lands which they owned or had for sale as brokers. In September, 1906, he accompanied one Joshua Rushton from Red Cloud to Chase county and introduced him to the defendants Burke & Campbell, who, with his assistance, made a sale to Rushton of certain Chase county land upon contract, for the price of $4,800, $450 of which was paid cash in hand. On this sale Carpenter was paid a commission by Burke & Campbell. An abstract of title to the land was prepared, to which Rushton made objection, and such negotiations were had between the parties that this contract was canceled, and on the 11th day of October Burke & Campbell, with the assistance of Carpenter, contracted with Rushton to sell him another tract of land for the price of $4,000, of which $1,450 was paid in cash, and the balance was to be paid on or before January 20, 1907. The cash payment was made up of the $450 paid by Rushton on the first contract and $1,000 for which he gave his check. At the time of the making of the second contract, the legal title to the land therein described was in the name of Lyman Pritchard, a resident of Iowa, who had executed a lease of this and other lands with an option to the lessee to purchase during the term at a price therein named, and this right had been assigned to and was held by Burke & Campbell.

Prior to January 20, 1907, Burke & Campbell, at the request of Rushton's attorney, sent to him an abstract which showed the title to the land in Pritchard, subject to a mortgage of $1,100. At or before this time, Burke & Campbell had taken steps to avail themselves of the option to purchase contained in the lease, and to secure the satisfaction of the mortgage and the making of a deed from Pritchard to Rushton. Rushton's attorney had written Burke & Campbell to postpone the date for the final closing of the transaction to January 23d; but on January 17th Rushton, having become dissatisfied because, as he claims, the title appeared to be in Pritchard, instead of Burke & Campbell, decided to sell the contract for what he could get, and disposed of the same to the plaintiff for $50. The plaintiff immediately went to Imperial, and on the 21st day of January, 1907, tendered to Burke & Campbell the balance of the payment and demanded from them the deed. This they were unable to furnish at that time, but they informed the plaintiff that they were expecting the arrival of the deed, and that they had received a letter from Mr. Rushton's attorney asking them to postpone the date of final payment until the 23d. The plaintiff remained in Imperial until the 23d, at which time he demanded repayment of the $1,450 paid by Rushton, but he does not appear to have again tendered the balance of the purchase price. On the 24th of January, Burke & Campbell received from Pritchard the satisfaction of the mortgage and the deed to Rushton, which they offered to deliver upon payment of the purchase price. On January 30th, the plaintiff filed his petition in this case in the district court of Webster county, joining Burke & Campbell with the defendant Carpenter. Summons was served upon Carpenter in Webster county, and a summons directed to the sheriff of Chase county was there served upon the defendants Burke & Campbell. The petition followed the form of the common-law count in assumpsit for money had and received. It charged that the defendants became indebted to one Joshua Rushton in the sum of $1,450 for so much money received from said Rushton on or about the 11th day of October, 1906, to and for the use of said Rushton, and alleged that Rushton had assigned his cause of action to the plaintiff, who had demanded and had been refused payment of the said sum.

The answer of Carpenter was a general denial. The answer of Burke & Campbell challenged the jurisdiction of the court, and set up the fact that the $1,450 was received as payment upon the contract for the sale of the land, which they were ready to perform, and denied the other allegations of the petition. To this answer the plaintiff filed a reply setting up that the defendants obtained the said contract by making false representations as to the ownership and value of the land; that he had, on the 22d day of January, 1907, rescinded the contract on account of such fraud, and because the defendants were unable to deliver title as agreed; and that he had demanded a return of the $1,450. A jury was waived, and the cause tried to the court, who found for the plaintiff....