Mushrush v. Devereaux
| Decision Date | 06 July 1886 |
| Citation | 28 N.W. 847,20 Neb. 49 |
| Parties | JACOB MUSHRUSH, PLAINTIFF IN ERROR, v. CLEVELAND DEVEREAUX, DEFENDANT IN ERROR |
| Court | Nebraska Supreme Court |
ERROR to the district court for Hall county. Tried below before NORVAL, J.
AFFIRMED.
Thummel & Platt, for plaintiff in error.
H. B Wilson, for defendant in error.
This action was brought before the county judge of Hall county to recover back the sum of forty-two dollars, paid on a verbal contract for the purchase and sale of a certain parcel of real property.
The brief of defendant in error contains a statement to the effect that the above named sum, which was paid on the purchase, bears such relation to the entire sum or price which was to have been finally paid for the farm, as to bring the case within the authority of Poland v. O'Connor, 1 Neb. 50. I must assume this to be true, as forty-two dollars is, certainly, but a small portion of the value of an average farm in this state, and nowhere in the record or brief of either counsel are we informed what the price agreed upon was, or really that any price was agreed upon.
In the second clause of the syllabus of the case above cited, the court say: "Payment of a small portion of the purchase price is not such part performance as takes the contract out of the statute of frauds." The contract, then, was void, and could be neither plead or proved in any court. However, I do not consider it important whether the contract between the plaintiff and defendant for the purchase and sale of the farm was a legal and binding contract or not. The plaintiff's right to recover depends solely upon the payment of the money by him and the refusal by the defendant to convey the land.
Plaintiff in error in his brief contends, "that inasmuch as the pleadings show upon their face that this was an action to recover money on a contract for the sale of real estate, the county judge had no jurisdiction of the subject matter," and he cites sections 16 and 18 of article VI. (the judiciary article) of the constitution.
Sec. 16 relates to county courts, and after providing for their jurisdiction generally, and that they shall not have jurisdiction in criminal cases in which the punishment may exceed six months' imprisonment, or a fine of over five hundred dollars, it proceeds, "nor in actions in which title to real estate is sought to be recovered or may be drawn in question, nor in actions on mortgages or contracts for the conveyance of real estate," etc.
Sec. 18 relates to the jurisdiction of justices of the peace and police magistrates, and after limiting their jurisdiction in certain respects, by the use of negative words, continues, "nor in any...
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