Powers v. Bohuslav

• Decision Date: 13 April 1909
• Docket Number: 15,594
• Citation: 120 N.W. 942,84 Neb. 179
• Parties: THOMAS POWERS, APPELLEE, v. FRANK BOHUSLAV, APPELLANT
• Court: Nebraska Supreme Court

120 N.W. 942

84 Neb. 179

THOMAS POWERS, APPELLEE, v. FRANK BOHUSLAV, APPELLANT

No. 15,594

Supreme Court of Nebraska

April 13, 1909

APPEAL from the district court for Butler county: ARTHUR J. EVANS JUDGE. Affirmed.

AFFIRMED.

Matt Miller and Hall, Woods & Pound, for appellant.

Skiles & Harris and E. J. Lambe, contra.

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

OPINION

GOOD, C.

Plaintiff sued on a written brokerage contract to recover a commission for finding a purchaser ready, able and willing to buy defendant's land at the price and on the terms mentioned in the contract. Defendant denied the execution of the contract, and averred that he had, at plaintiff's request, signed a paper which was a printed blank of some kind, but that none of the blank spaces in the printed form were filled out; that defendant was not able to read English, and that he believed the paper signed was for plaintiff to use to show that he had a right to sell the land. The reply was a general denial. A jury was waived and a trial had to the court, which resulted in a judgment for plaintiff, from which defendant has appealed.

It is insisted that the court erred in finding that defendant executed the contract in question. The evidence is in conflict as to whether the blanks in the contract were filled in before or after it was signed by defendant, and as to whether it contains the agreement and understanding of the parties. The rule is well settled in this state that the verdict of a jury based on conflicting evidence will not be disturbed on appeal. A finding of the district court on a question of fact in a law action is entitled to the same force and effect as the verdict of a jury, and it will not be disturbed on appeal unless it is manifestly wrong. From an examination of the record it appears that the findings of the court accord with the weight of the evidence.

Defendant contends that the contract is void for uncertainty of description, and because it does not contain a description of the land to be sold as required by section 10856, Ann. St. 1907. The material part of the contact is as follows: "Farm owned by Frank Bohuslav. For sale by Thos. Powers, Ulysses, Neb. Total number of acres, 120 acres S. 1/2 N. W. 1/4 W., Qr. Sec. 27, Tp. 4, R. 14, County, Butler. State, Nebr. Total number of acres to grass--tame 4, Prairie 27. Buildings, house and barn. Fences--kind 3 wires . How watered, well. Orchard 57. Distance to Railroad Depot, 3 1/4. Distance to Postoffice and name of same, Brainard, Church, 3 1/4. Title, two hundred. Encumbrance--when due, etc. Nov. 16, 1905. Lowest price and terms of sale. Fifty dollars per acre, three hundred cash. Three thousand. 25 day February 1906. Balance five years at five percent. I hereby place the above described property in the hands of Thos. Powers for the period of 25 February, 1906, and authorize him to negotiate its sale at the price stated above, for which I agree to pay a commission of two percent. if sale is effected directly or indirectly by Thos. Powers or owner or agent. If not notified thirty days prior to contract, said contract shall be in full force. (Signed) Frank Bohuslav, Thos. Powers. Ulysses, Neb. May 30, 1905." The contract is partly printed and partly written. The italics represent that portion of the contract which is in writing.

The plaintiff pleads, and the evidence shows, that the land intended by the parties to be described was the south 1/2 of the northwest 1/4 and the northeast 1/4 of the southwest 1/4 of section 27, in township 14 north, range 4 east, in Butler county. The description in the contract is township 4, range 14, which is an impossible description, for no such town and range exist in Butler county, but township 14, range 4, do exist in Butler county. The correct township number was inserted in the space intended for the range number, and the correct range number was inserted in the space intended for the township number. That this reversal of numbers of the township and range was a mere clerical error is patent. From that part of the contract alone where part of the section is sought to be described by government subdivisions, it would be impossible to tell with precision what 120 acres in section 27 was intended, and, if there was nothing further in the contract by which the identity of the land could be ascertained, defendant's contention would have great weight and force; but we find the land further referred to therein as being a farm owned by the defendant, containing 120 acres; that it is located in section 27; that it is distant from Brainard 3 1/4 (miles); that there is on the premises a house and barn, a three-wire fence, an orchard of 57 (trees), and a well, and that it is incumbered for $ 200. The evidence shows that the defendant had for many years lived upon the land; that it was located 3 1/4 miles from Brainard, and that he owned no other land in Butler county. The parties were at defendant's home on the land when the contract was signed. There can be no possible doubt that both parties intended to have the contract describe the defendant's land.

Can it be said, under these circumstances, that the contract does not describe the land to be sold or that it is void for uncertainty? In an action to recover commission for sale of real estate, this court has held that the contract might be established by letters, and, if the letters contain data from which a description of the land placed with the agent for sale or barter can be ascertained with certainty, the contract will be enforced. Holliday v. McWilliams, 76 Neb. 324, 107 N.W. 578. In that case there was no accurate description of the land contained in the letters. The farm was...