Olson v. Lamb

• Decision Date: 06 March 1901
• Docket Number: 11,672
• Citation: 85 N.W. 397,61 Neb. 484
• Parties: CHARLES J. OLSON, APPELLEE, v. WALTER J. LAMB ET AL., APPELLANTS
• Court: Nebraska Supreme Court

85 N.W. 397

61 Neb. 484

CHARLES J. OLSON, APPELLEE, v. WALTER J. LAMB ET AL., APPELLANTS

No. 11,672

Supreme Court of Nebraska

March 6, 1901

APPEAL from the district court for Lancaster county. Heard below before HOLMES, J. Affirmed.

Affirmed.

Walter J. Lamb, for appellants.

Ricketts & Wilson, contra.

OPINION

HOLCOMB, J.

This is an action in equity, which for the second time is here for consideration. On the first appeal an exhaustive opinion was filed, determining and disposing of all the essential points of difference in controversy and remanding the case with special directions for further proceedings in accordance with the views expressed in the opinion. Olson v. Lamb 56 Neb. 104, 76 N.W. 433. The case is fully stated in that opinion and need not here be repeated.

The controversy as it now stands is with regard to the rights of the respective parties as determined by the trial court in the subsequent proceedings after the remanding of the case on the last appeal. Lamb appeals from the judgment last rendered in the district court, and the other parties, by reason of a cross-appeal, appear also in the role of appellants. In the opinion referred to it is said: "As to Olson the case must be reversed and remanded with directions to the trial court to retake the account, allowing to Olson the benefit of the discounts at which Lamb purchased the liens, including the $ 1,000 remittitur, and to allow him also the reasonable value of his work under the contract to complete the building; to charge Lamb with rents. On the other hand Lamb should be credited with his actual disbursements in buying the property, in completing the building and in managing the same. He should be allowed nothing for legal services, but receive a reasonable compensation for superintending and managing the property after he acquired title."

With reference to the appellee, the Prentice Brown-stone Company the opinion says: "The stone company must also be permitted to redeem. In adjusting its account it should be allowed credit for such proportion of this $ 1,000 [the remittitur] as it would have been apportioned had the bid been that much higher and no remittitur entered. It should also be given the benefit of the discounts on the two liens" [referring to the two liens purchased by Lamb at a discount].

The case is thus narrowed down to an accounting between the contesting parties according to the method held in the opinion to be proper in determining their respective rights and interests in the subject-matter of the litigation.

After the cause was remanded permission was applied for and obtained to amend the pleadings as against Lamb, by alleging that for one of the liens purchased by him, denominated the Leavitt lien, he paid nothing therefor, having secured the same by trading worthless paper. In the first pleading the discount was alleged to be $ 100; by the amendment it was sought to allege and prove that it was much greater and equaling the face value of the lien. Under the amended pleadings and proof the amount found to have been paid for the Leavitt lien by Lamb was $ 1,050, some $ 525 less than under the former decree.

Complaint is made because of the action of the trial court in allowing the amendment spoken of, it being contended that under the special mandate the amendment was not permissible and that the finding thereunder should be disregarded, and the parties' rights with respect to the item affected by the amendment be held to be as fixed in the first decree. Under the special mandate the cause was remanded with directions to retake the accounts of the parties, the first having been improperly taken. This was in effect a direction to relitigate the question of the state of the accounts of the litigants. Upon this issue a trial de novo was permissible, or the case might proceed on the evidence already taken. The pleadings might be amended with respect to the accounts of the parties, not as a matter of right, but in the exercise of a sound discretion vested in the trial court, and its action in regard thereto will not be held erroneous unless there appears an abuse of discretion. Troup v. Horbach, 57 Neb. 644, 78 N.W. 286; Pinkham v. Pinkham, 60 Neb. 600, 83 N.W. 837.

On the first hearing half the costs of the action was decreed against the defendant, the Prentice Brownstone Company. On the second trial a decree was entered assessing the costs of the action made by plaintiff and defendant stone company against defendant Lamb, and it is now urged that the decree awarding costs in the first trial became final on the affirmation of the judgment on appeal, with the exceptions noted. We think the decision of this court reversing the decree as to the stone company and awarding it the right to redeem, as well as directing that it be apportioned its proportionate share of the amount bid, on the sale of the...