Northup v. Bathrick

• Decision Date: 09 November 1907
• Docket Number: 14,963
• Citation: 113 N.W. 808,80 Neb. 36
• Parties: HOMER H. NORTHUP ET AL., APPELLEES, v. EDWARD W. BATHRICK, APPELLANT
• Court: Nebraska Supreme Court

113 N.W. 808

80 Neb. 36

HOMER H. NORTHUP ET AL., APPELLEES, v. EDWARD W. BATHRICK, APPELLANT

No. 14,963

Supreme Court of Nebraska

November 9, 1907

APPEAL from the district court for Furnas county: ROBERT C. ORR JUDGE. Reversed.

REVERSED.

W. S Morlan, for appellant.

John Stevens, Jr., contra.

EPPERSON C. DUFFIE and GOOD, CC., concur.

OPINION

EPPERSON, C.

Plaintiffs, Northup and Renie, were successful in the lower court in this an action of replevin to recover from defendant, Bathrick, about 800 bushels of wheat, and the latter appeals.

In 1905 plaintiffs were engaged in the real estate business at Arapahoe, Nebraska. J. W. Tomblin, a nonresident of this state, owned a farm of 320 acres a few miles from that village. The defendant occupied it as tenant, giving $ 50 and one-third of the crop as rent. May 2, 1905, plaintiffs sent Tomblin the following telegram: "What is your best price on half-section north of Arapahoe? Can get you thirty per acre. Answer." Tomblin replied: "Sell thirty-five per acre including crops. Half on time at seven if desired." Plaintiffs sold the land, and on May 25 wired Tomblin: "We have sold your farm at thirty-five. Will write you fully." Plaintiffs thereupon wrote Tomblin explaining the terms of sale. The price received was $ 35 an acre and the crop, the purchaser paying $ 6,200 in cash, and giving a mortgage for the remainder. The letter instructed Tomblin to send deed, abstract, and assignment of the lease either to the plaintiffs or to the First National Bank of Arapahoe. The name of the grantee was to be inserted in the deed later, and the assignment of the lease was to be in blank. In the event the papers were forwarded to the bank, the bank was to be directed to turn over $ 305 to the plaintiffs as commission when the deal was closed. May 31 Tomblin forwarded the deed, the abstract, and the assignment of the lease, with a letter containing, among other things, the following: "When sale is consummated you can pay Northup and Reinie $ 305. Com." This sum was paid to plaintiffs, and it was understood by all parties that $ 305 was the usual commission and that plaintiffs were entitled to the same. When the deal was finally closed, the name of the purchaser, Robert Goethe, was inserted as grantee in the deed, and the names of plaintiffs were inserted as assignees of the lease. When Tomblin became aware of the fact that the purchaser of the land was not to receive the benefits accruing under the lease, but that all benefits were to go to his agents, the plaintiffs herein, he instructed the defendant, his tenant under the lease, not to turn over the rent to the plaintiffs, and, upon defendant's refusal to deliver one-third of the wheat, plaintiffs brought this action, with the result as hereinbefore stated.

1. It is argued by plaintiffs that the judgment should be affirmed for the reason that defendant failed to verify his answer. The failure to verify the pleading did not oust the court of jurisdiction. Johnson v. Jones, 2 Neb. 126; Dorrington v. Meyer, 8 Neb. 211. Besides, this objection to the answer was not raised before trial, and cannot now be considered. Schwarz v. Oppold, 74 N.Y. 307.

2. After sending the telegrams and letters preserved in the record, and receiving and acting upon Tomblin's answers thereto, and accepting the sum requested and obtained by plaintiffs from Tomblin as commission, plaintiffs will not be heard to say that there was no contract of agency. See Quertermous v. Taylor, 62 Ark. 598, 37 S.W. 229.

3. Neither can it be claimed that defendant should be required to surrender the property to plaintiffs because his landlord (Tomblin) did not intervene and establish his right to possession. The rule is well established that in replevin the plaintiff must rely upon the strength of his own title, and cannot rely upon the weakness or lack of title of his adversary. St. John v. Swanback, 39 Neb. 841, 58 N.W. 288; Johannsen v. Miller, 45 Neb. 53, 63 N.W. 141; Herman v. Kneipp, 59 Neb. 208, 80 N.W. 816. Defendant was in possession of the wheat as tenant of Tomblin, and it was competent for him to challenge the plaintiffs' title and defeat it by showing title and the right of possession in a third person. Sutro v. Hoile, 2 Neb. 186; Fuller v. Brownell, 48 Neb. 145, 67 N.W. 6.

4. Defendant seeks a reversal for the reason that the judgment is not supported by the evidence; that the evidence shows that plaintiffs did not in fact make a sale of the crops but, under a pretense to him that the crops were sold or the rents assigned, attempted to appropriate the same to their own use. No rule is better settled than that an agent is required to disclose to his principal all the information he has touching the subject matter of the agency, and that his relation to his principal forbids his becoming a purchaser thereof for his own benefit, in any way, without the full knowledge of the principal of this fact. Jansen v. Williams, 36 Neb. 869, 55 N.W. 279, and cases there reviewed and approved. In Rockford Watch Co. v. Manifold, 36 Neb. 801, 55 N.W. 236, Mr. Commissioner IRVINE said: "The evidence does not disclose any fraud or even...