Nelson v. Hiatt

• Decision Date: 23 November 1893
• Citation: 56 N.W. 1029,38 Neb. 478
• Parties: NELSON v. HIATT.
• Court: Nebraska Supreme Court

38 Neb. 478

56 N.W. 1029

NELSON

v.HIATT.

Supreme Court of Nebraska.

Nov. 23, 1893.

Syllabus by the Court.

A party sold his business and the good will of the same to another, and agreed not to do a general business at that point. He violated his agreement, and engaged in business at the place named. The matter was then submitted to arbitration, and an award made assessing damages and restraining the vendor from again doing business at that place. Afterwards he carried on business at the place named. Held, that the purchaser was entitled to compensation for a violation of the agreement, and the damages could not be considered excessive.

Error to district court, Gage county; Broady, Judge.

Action by Colonel J. Hiatt against Lind Neison for a breach of contract. There was judgment for plaintiff for $350, and defendant brings error. Affirmed.Griggs, Rinaker & Bibb, for plaintiff in error.

Hardy & Wasson, for defendant in error.

MAXWELL, C. J.

This is an action for a breach of the following agreement: “This agreement, entered into this 22d day of August, 1889, by and between Lind Nelson and C. J. Hiatt, witnesseth that the said Lind Nelson, for and in consideration of the covenants to be performed by C. J. Hiatt, do promise and agree not to buy hogs or cattle to ship from this place of Odell, Gage county, Nebraska, except said Lind Nelson has a part of car load of cattle to ship; then said Nelson has the privilege to buy to fill said car and ship the same. This agreement to be in force so long as C. J. Hiatt is in the business of buying and shipping from Odell, and no longer. Lind Nelson. C. J. Hiatt. Witness: Mat Brooks.” The price paid by Hiatt seems to have been $1,000. Nelson seems to have continued to purchase stock, in violation of the agreement, and the parties submitted the matter to arbitration, the award being as follows: “Beatrice, Neb., June 11th, 1890. We, the undersigned, arbitrators in the case of C. J. Hiatt v. Lind Nelson, find (1) that above-named defendant shall pay all court costs and the costs of this arbitration; (2) that said defendant, Lind Nelson, shall pay the sum of $125 to the plaintiff, C. J. Hiatt, as damages in full to date; (3) that the defendant, Lind Nelson, shall hereafter abstain from engaging, either directly or indirectly, in the business of buying and shipping hogs or cattle at the village of Odell, Gage county, Nebraska, in accordance with the articles of agreement entered into on the 22d day of August, 1889, by and between above-named plaintiff and defendant. In witness whereof, we have hereunto set our hands, this 11th day of June, 1890. L. E. Walker, C. L. Cole, E. C. Salisbury, Arbitrators.” After this award was made, the plaintiff continued to purchase stock, in violation of his agreement, and this action was brought to recover for the damages. In his answer to the petition, the defendant below, Lind Nelson, alleges “that he admits that on August 22, 1889, he entered into the written agreement with plaintiff set forth in plaintiff's petition as Exhibit A; (2) that there was no consideration for the said contract; that the property sold by defendant to plaintiff was well worth the sum paid by plaintiff to defendant at said time; (3) that prior to and ever since the 11th day of June, 1890, the said plaintiff quit and ceased the business of buying and shipping of cattle and hogs from Odell, Gage county, Nebraska; (4) that he denies each and every allegation in the first cause of action in said plaintiff's petition contained not herein expressly admitted or denied.” The second cause of action was withdrawn from the jury, and need not be considered.

The principal error relied upon is that the damages are excessive, and that the verdict is not sustained by sufficient evidence. These are considered together in the plaintiff in error's brief, and will be so considered here. Hiatt testified as a witness in his own behalf, as follows: “Q. Are you the party that made the contract, Exhibit A, attached to the petition, with Mr. Nelson? A. Yes, sir. Q. You may now state what you purchased of Mr. Nelson under that contract, and what you paid for it. A. I purchased his shipping yard and scales, and there was an old corncrib in the yard, and a shanty, for a kind of office he had there,--he had been using it for a hog pen part of the time,--and the good will of the business. Q. What did he say to you in regard to the value of his business? A. He said his business was worth $100 a month. He said the reason he wanted to sell-- Q. by Mr. Bibb: Was there any written contract of sale between you,--any written bill of sale? A. Yes; he gave me a deed to the land. Q. This contract was in writing, then? A. Yes. Q. How much did you pay him, by the way? A. I paid him the sum of $1,000. Q. When did you take possession of the property? A. Some time in August, 1889. Q. How long after you made the contract? A. The next day. Q. Then what did you do there? A. Well, I was living on the farm at the time. Q. You may state whether or not you continued in business there up to the time you commenced the first action in the case of Hiatt v. Nelson. What business was you engaged in? A. I was shipping from Odell. Q. Shipping what? A. Cattle and hogs. Q. How did you get them to ship? A. I bought them of farmers. Q. Now, skip down to the 11th of June, 1890. What occurred about the 11th of June, 1890, after the commencement of the suit? A. I got word that our suit was set for a certain day, and Nelson came to me, and wanted to settle before we came up. I asked him how he wanted to settle, and he said he wanted to leave it to arbitrators, and I asked him who he wanted to pick for as arbitrators, and he said he would take three men out of the Masonic Lodge at Odell. I objected to it. I told him I didn't want to mix any of our members up in the business, but was willing to go to Beatrice, and pick men within the lodge there, and we agreed to it and came. Q. What was done after you got here? A. Well, we chose arbitrators. Q. Do you know who they were? A. L. E. Walker, G. L. Cole, and a Mr. Steele,--I forgot his first name. Anyway, he couldn't serve, and we chose Mr. Salisbury in his place. Q. Was there any written obligation made before this was arbitrated? A. Yes. Q. On the 11th day of June, 1890, what business were you engaged in? A. Engaged in the shipping business,--live stock from Odell, Neb. Q. How long had you been engaged in the business prior to that time at that place? A. Since August. Q. At the time of making that contract? A. Yes, sir. Q. State what year it was that you made the contract to commence business. A. In the year 1889. Q. And the 11th of June you were engaged in the same business, up to January 1st? A. Yes. Q. Go on, and tell the court how you were engaged in business, and what you were doing from that time up to January, 1891. A. I was shipping hogs and cattle from Odell to market. Q. Where did you get them to ship? A. I bought them from farmers in that county. Q. State to what extent you were engaged in it. A. I was engaged in it all the while. I put in all my time to that business, and have ever since I bought the business. Q. What was defendant, Nelson, doing from the 11th of June, 1890, up to the 17th of January, 1891? A. He was engaged in the same kind of business. Q. Where? A. At Odell. Q. In this county? A. Yes. Q. Where did he get his stock to ship? A. Well, he got part of them from the same men that I got mine of, and different farmers around. Q. How did he get them of the farmers? A. I suppose he bought them. Q. Now, he, during this time, was carrying on business there in competition with you? A. Yes; he was. Q. Tell how that affected you in regard to your buying. Go on and tell the jury. A. Whenever he got a chance to overbid me on anything, he would go and buy it, regardless of the market. If I had bid on a bunch of stock all the market would afford, if the same men gave him a chance to bid he would go and buy it, to keep me from buying it, regardless of the market. Q. State whether or not he compelled you to bid for stock more than it was worth. How...