Rasmussen v. Hungerford Potato Growers Association

• Decision Date: 20 October 1923
• Docket Number: 22520
• Parties: ROY J. RASMUSSEN, APPELLEE, v. HUNGERFORD POTATO GROWERS ASSOCIATION ET AL., APPELLANTS
• Court: Nebraska Supreme Court

195 N.W. 469

111 Neb. 58

ROY J. RASMUSSEN, APPELLEE, v. HUNGERFORD POTATO GROWERS ASSOCIATION ET AL., APPELLANTS

No. 22520

Supreme Court of Nebraska

October 20, 1923

APPEAL from the district court for Douglas county: CHARLES LESLIE JUDGE. Reversed.

REVERSED AND REMANDED.

Wharton & Waldron and J. E. Porter, for appellants.

McKenzie Cox, Burton & Harris, contra.

Heard before MORRISSEY, C. J., LETTON, ROSE, DEAN, DAY and GOOD JJ., REDICK and SHEPHERD, District Judges.

OPINION

SHEPHERD, District Judge.

In the court below the first trial to a jury resulted in a disagreement. In the second, both parties moved for a directed verdict, and the court found for the plaintiff, Rasmussen, against all of the defendants, Hungerford, Hungerford Potato Growers Association, a corporation, and Snowden. The suit was brought in Douglas county, where summons was served upon Snowden personally and upon the corporation by delivering a copy to Snowden as its secretary-treasurer. Service was then had upon Hungerford in Dawes county.

The defendants, or some of them, represented to plaintiff that they owned, and could sell him, a certain 80 acres of land in Dawes county, and that they would convey the same to him for $ 1,800 and a two years' use of the land; $ 300 of said $ 1,800 to be paid in cash and the other $ 1,500 March 5, 1917, when deed and abstract were to be delivered. Plaintiff believed, relied and bought, paying the $ 300 down. Contract was made and deposited in escrow. This was on January 27, 1917. On the 5th of March following plaintiff found by the abstract, which had by that time been furnished, that there was a $ 500 mortgage on the eighty and it was arranged that the defendant company should take only $ 1,000 of the escrow money, leaving $ 500 to await the payment of the mortgage. This it did. Plaintiff went out to look at the land in May of 1917, was shown the 80 acres by employees of the company, and returned well pleased with his bargain. Later in May Hungerford, who was the president of the corporation, learned, so he says, that the sections containing the land involved abutted the range line on the west and were short, so that the company could not convey the land sold, or at least a considerable portion of it. He wrote plaintiff a letter so explaining and offered to give him other land in lieu thereof or to return him his purchase money. Plaintiff wrote back saying that he wanted his land; that if it was short because of mistake in the government survey "Uncle Sam" was good for it. The matter ran along until February of 1918, the mortgage still unpaid, the plaintiff urging specific performance. Then Hungerford went to Omaha and repeated to Rasmussen in person what he had said in his letter, told him that he believed the section short and that there was no land there, explained to him how that might happen because of error in the government survey despite the fact that the abstract showed as it did, explained that he did not want to pay off the mortgage because that would be throwing good money after bad if the land was lacking as he believed, and urged him to take another eighty or to accept a return of his money. Plaintiff refused, demanding the payment of the mortgage and the delivery of his deed, and stating that the land sold him was worth $ 5,000 or $ 6,000. Hungerford testified that he then asked plaintiff if he would agree not to hold him or his company if the mortgage was paid off and the deed delivered, and that plaintiff said "yes." Plaintiff denies this utterly. However this may be, the mortgage was paid, the deed taken from escrow by the plaintiff, and the remaining $ 500 taken down by the company.

On June 22, 1918, plaintiff brought suit in damages for fraudulent representation, alleging, as above stated, that defendants had told him that they owned the land and could sell it to him, etc., and alleging further that their statements were false and that he had been damaged in the sum of $ 6,000. Defendant Snowden did not answer. Defendants Hungerford and the company appeared specially, objecting to the jurisdiction, and setting forth by affidavit that at the time of the commencement of the suit Snowden had sold his stock and resigned his office, and that the company had closed its Omaha office and established its headquarters at Chadron, where Hungerford resided. The court overruled their special appearance. Both answered, saving their jurisdictional question. Hungerford pleaded that he was acting for the company, and generally denied the petition. The company set out all of the matters appearing in the foregoing statement of facts. Trial was had, as above stated, resulting in a disagreement of the jury. Thereupon, upon the second trial, the one presently in question, the plaintiff asked to obtain leave to amend his petition by interlining these two paragraphs, to wit:

"Plaintiff has offered to return to the defendant the deeds which plaintiff received from said defendant, and herewith brings the same into court and tenders the same back to the said defendant.

"Wherefore, plaintiff prays for judgment against the said defendant for the sum of $ 1,800 and interest thereon at the rate of seven per cent. per annum, from the 27th day of January, 1917."

And in connection with this the following explanation took place between the two parties and the court: "The Court: You say here, 'Wherefore, plaintiff prays for judgment against the said defendant for the sum of $ 1,800 and interest thereon at the rate of seven per cent.' Mr. McKenzie: That is in lieu of the other prayer. Mr. Porter: Well, then paragraph 6 is intended to be stricken, is it? Mr. McKenzie: Yes, I don't care about paragraph 6. Mr. Porter: The defendant then would ask that the answer which was filed to the original petition stand as the answer to the amended petition. Mr. McKenzie: Oh, yes; that is agreeable. The Court: It is merely a suit now to determine whether you are entitled to the $ 1,800 back? Mr. McKenzie: That is all. The Court: Narrows the issue down to that? Mr. Porter: Yes."

First of all should be considered the special appearance and whether the trial court was in error in overruling the same. Miss Hungerford, daughter of the defendant of that name, testified that she was the secretary-treasurer of the corporation at the time the suit was commenced, succeeding Snowden, who had resigned in 1917. Her father corroborated her. But she was not permitted to testify as to the contents of minute book or record in that regard, no foundation for such testimony having been laid. The minutes had not been lost and there was no evidence that she was present when they were made. It appears that defendant omitted to produce them in court.

The presiding judge could properly have refused to believe the statement that Miss Hungerford was such officer, and found that Snowden remained secretary and treasurer at the time of the beginning of the action. He was entitled to rely upon the law that an officer holds his...