Rector v. Gutru

• Decision Date: 31 December 1923
• Docket Number: 22603
• Parties: EDMOND C. RECTOR ET AL., APPELLEES, v. GEORGE H. GUTRU ET AL., APPELLANTS
• Court: Nebraska Supreme Court

196 N.W. 682

111 Neb. 417

EDMOND C. RECTOR ET AL., APPELLEES, v. GEORGE H. GUTRU ET AL., APPELLANTS

No. 22603

Supreme Court of Nebraska

December 31, 1923

APPEAL from the district court for Antelope county: WILLIAM V ALLEN, JUDGE. Reversed.

REVERSED.

J. F Boyd and H. Halderson, for appellants.

Jackson & Rice and J. A. Donohoe, contra.

Heard before MORRISSEY, C. J., ROSE, DEAN and GOOD, JJ., SHEPHERD District Judge.

OPINION

GOOD, J.

This is an action to recover damages for breach of a contract to convey real estate, in which Edmond C. Rector and Henry H. Drayton are plaintiffs, and George H. Gutru, Frank Hough, and Austin C. King, Jr., are defendants. Judgment went in favor of defendant King and for plaintiffs as against Gutru and Hough. The latter two have appealed.

On the 31st day of December, 1918, King entered into a written contract, whereby he agreed to convey to Rector an 80-acre tract of land in Antelope county, Nebraska, for a consideration of $ 5,300, of which $ 500 was then paid in cash. It was for a breach of this contract that the action was brought. Plaintiffs allege that in entering into said contract Rector acted for himself and his coplaintiff Drayton, and that each was to furnish half of the consideration. They also allege that in entering into said contract King acted for himself and for Gutru and Hough. Plaintiffs allege, in substance, that at the time of the execution of said contract King, Gutru and Hough were the joint owners of a contingent interest in the aforesaid real estate, such interest being based upon a written contract between the said Gutru and Hough and one W. T. Brookhouser, and that the said King, Gutru and Hough, prior to the execution of the contract by King, entered into a verbal agreement, by the terms of which it was understood and agreed that King should obtain a purchaser for the said real estate on the terms set forth in the contract, and that upon King obtaining such purchaser Gutru and Hough, with King, would convey such real estate to said purchaser; that Gutru, Hough and King were joint owners of the aforesaid real estate and were jointly liable for failure to comply with the terms of said contract.

Each of the defendants answered separately. King, for his answer, admits entering into the contract, and alleges that he was acting for and on behalf of himself and the defendants Gutru and Hough; that on the 30th of December, 1918, he had received a contract for the sale of said land from Gutru and Hough, and, in entering into the contract of sale with Rector, he was acting for himself and for Gutru and Hough, and that they failed to furnish him (King) with an abstract of title and warranty deed as agreed; and alleges further that his failure to perform the contract was due to the failure of Gutru and Hough to fulfil their contract with him. The answers of Gutru and Hough are the same in substance. Each admits that at one time he had an interest in a contract with Brookhouser, but avers that King at no time had any interest in the same, and that at no time did King have any authority from the answering defendant to make any contract relative to the land described in the petition, and denies all the other allegations in the petition.

The record discloses without substantial dispute that Gutru and Hough, who were residents of Newman Grove, Nebraska, were copartners engaged in selling western Kansas lands; that they employed King, a resident of Orchard, Nebraska, as agent to solicit and find purchasers for the lands they were handling, and orally agreed to pay him a commission of $ 2.50 an acre for land sold to purchasers procured by King, such commissions to be paid when each deal was closed and the consideration paid. Pursuant to this arrangement, King procured one Brookhouser to enter into a contract with Gutru and Hough for exchange of lands, whereby Gutru and Hough were to convey to Brookhouser 320 acres of land in Greeley county, Kansas, and as consideration therefor, Brookhouser was to pay $ 400 in cash and convey to Gutru and Hough 80 acres of land in Antelope county, Nebraska. This exchange contract was made in November, 1918, and provided for exchange of deeds of the parties thereto on or before December 1, 1918.

From this on, there is a conflict in the evidence. King, who is apparently quite friendly to the plaintiffs, was called as a witness for them, and testifies, in substance, that in December, 1918, there was an oral agreement between him and Gutru and Hough, whereby he was not to receive his commission on the Brookhouser deal until he (King) should sell the land that Brookhouser had agreed to convey, and that he should sell this land for $ 5,300, of...