Reid v. Colby

• Decision Date: 16 May 1889
• Citation: 42 N.W. 485,26 Neb. 469
• Parties: REID v. COLBY ET AL.
• Court: Nebraska Supreme Court

26 Neb. 469

42 N.W. 485

REID

v.COLBY ET AL.

Supreme Court of Nebraska.

May 16, 1889.

Syllabus by the Court.

1. The claim of defendants in the nature of a counter-claim for damages growing out of the alleged misrepresentations of the plaintiff, at the time of the sale and transfer by him to them of the farm and personal property thereon, as to the amount and value of such personal property thereon under the facts and circumstances set out at length in the opinion, as well as their claim for damages of a similar nature, arising from their failure to obtain the immediate possession of said farm and personal property, being resisted by the family of the plaintiff, he being absent in the penitentiary, held inadmissible, and rightly rejected by the trial court.

2. The claim of defendants that in the execution of the note and mortgage sued on by C. and H. to R. there was a mistake, whereby said note and mortgage were drafted, made, and executed, so as to read and represent a sum $1,000 too much, and in excess of the sum actually agreed upon and intended, held to be supported by the overwhelming weight of evidence, and that the finding of the trial court against such claim is clearly wrong.

3. Where a verdict or finding is clearly wrong, it should be set aside. Seymour v. Street, 5 Neb. 85.

Appeal from district court, Gage county; BROADY, Judge.A. Hardy and A. H. Babcock, for plaintiff.

Pemberton & Bush, C. O. Bates, and Harwood, Ames & Kelly, for defendants.

COBB, J.

The plaintiff commenced his action in the district court of Gage county, for the foreclosure of a real-estate mortgage executed by L. W. Colby and Alfred Hazlett, together with their wives, to secure the payment of a promissory note executed by them to him for the sum of $12,000, with interest at 10 per cent. per annum, dated March 7, 1884, and payable March 7, 1885.

The plaintiff's petition, after setting forth the execution and delivery of the note, and the execution, acknowledgment, delivery, and recording of the mortgage, contained the statement that “the defendants have not paid the amount secured by the said mortgage, except the sum of $40, on March 24, 1884, and the sum of $1,791.15, April 9, 1884, and the further sum of $460, April 17, 1884, and there now remains due and unpaid thereon the sum of $13,564.47, (February 4, 1888.)”

The defendants, by their joint answer, alleged as follows:

“(1) They admit that on March 7, 1884, the defendants L. W. Colby and Alfred Hazlett made and delivered to the plaintiff their promissory note, as set out in the plaintiff's petition, and that to secure the payment of the note they, with the defendants Clara B. Colby and Sibby Hazlett, on the same day, executed and delivered to the plaintiffs the mortgage deed in the plaintiff's petition described, which was duly recorded in the county clerk's office. That they have paid on said note sums amounting to $2,291.15. That on or about March 15, 1884, said defendants L. W. Colby and Clara, his wife, and Alfred Hazlett and Sibby, his wife, executed and delivered to the defendant William H. Kilpatrick a warranty deed to the mortgaged premises, and that on January 15, 1885, the said Kilpatrick executed and delivered to the said Colby a warranty deed to the mortgaged premises; and they deny each and every allegation in said petition, except the matters and things expressly admitted.

(2) That on March 7, 1884, at the time of the execution of the mortgage set forth in the plaintiff's petition, the plaintiff, William H. Reid, was indebted to the defendants L. W. Colby and Alfred Hazlett in the sum of $5,000, for professional services and legal expenses in the prosecution of the State of Nebraska v. William H. Reid. That for the purpose of liquidating said indebtedness, and inducing the defendants Colby & Hazlett and William H. Kilpatrick to purchase said mortgaged premises, and a large amount of personal property in connection therewith, and to induce the defendant William H. Kilpatrick to advance money sufficient to pay said indebtedness to Colby & Hazlett, and to pay other accounts of costs and indebtedness to other parties then required to be paid by the plaintiff, he represented and made the following statements in regard to the premises and personal property: That he was the owner in fee of the mortgaged premises, that the same was free and clear of all liens and incumbrances, and that the same was in his possession, and that he had lawful authority to sell and convey the same, and to deliver possession thereof, and that it was of the value of $14,000, and that he was the owner and was in possession of a large amount of personal property on said premises, and has good right and lawful authority to sell the same, to-wit: 10 head of horses, 20 head of cows, 30 3-year-old steers, 20 2-year-old cattle, 12 yearling calves, 60 head of hogs, 3 lumber-wagons, 1 spring-wagon, 2,000 bus. corn in crib and field, 3 sets of double harness, 1 harvester, 1 corn-planter, 2 harrows, 1 hay-rake, 3 plows, 1 stove, 1 table, and 5 chairs, and a large amount of household property, cooking utensils, and other personal property, of the value of $4,000; whereas, in fact, the plaintiff was not the owner, nor was he in possession, of said property, nor was it of the value of $4,000. That said plaintiff was the owner and in possession of only the following personal property, of value not exceeding $1,000, to-wit: 10 hogs, 10 cows, 4 horses, 12 two-year olds, 10 year-lings, 2 calves, 1 spring-wagon, 3 plows, 2 sets of harness, 1 table, 5 chairs, 1 cookstove, 600 bus. corn; and said mortgaged premises were not in the plaintiff's possession, but were in the possession and control of James M. Reid, George Reid, William Reid, Sarah Plucknett, and others, who had liens upon, and claimed to own and control, the same; and there was also a large amount of taxes due, and a lien upon said premises,--all of which the plaintiff well knew, and of which the defendants had no knowledge whatsoever. That relying entirely upon said representations, and without having seen said property, the defendants agreed with the plaintiff as follows: To purchase said mortgaged premises and personal property, so represented to be owned by plaintiff, at the sum of $16,000, the same to be conveyed to the defendants Colby & Hazlett, and by them conveyed to the defendant William H. Kilpatrick, the compensation therefor to be paid as follows: $5,000 in attorney's fees and expenses, in full of the indebtedness of the plaintiff to Colby & Hazlett, and the balance of the $11,000 was to be placed in the shape of a note secured by a mortgage on said premises, due in one year; and it was also agreed that the further sum or sums, amounting to $2,291.15 for costs and other indebtedness of the plaintiff, should be paid from time to time as required, and the amount, when so paid, indorsed on the note of $11,000. That pursuant to said agreement the plaintiff executed and delivered to the defendants Colby & Hazlett a warranty deed of said mortgaged premises, and the said defendants executed and delivered to William H. Kilpatrick their warranty deed of said premises, and a bill of sale of said personal property, and said W. H. Kilpatrick paid to Colby & Hazlett the sum of $4,000, and for costs and other indebtedness of the plaintiff amounts aggregating $2,291.15, which were indorsed on the notes set forth in plaintiff's petition. That said Colby & Hazlett receipted said $5,000 indebtedness in full, and by a mistake in figuring executed and delivered the said note and mortgage described in plaintiff's petition for $12,000, when the same should have been for $11,000, in accordance with the terms of said agreement; and, after the execution and delivery of all the papers connected therewith, the defendants discovered said mistake in said note, and that thereafter the defendants learned for the first time that the plaintiff was not the owner and in possession of the said personal property and mortgaged premises purchased, and that the representations in regard thereto were false; that the said James M. Reid and others were in possession of said personal property and premises under a lease and claim of ownership from the plaintiff; and on the 24th day of March, 1884, he brought suit in the district court against the defendant W. H. Kilpatrick and others, and obtained an order enjoining and restraining said defendant from interfering with his possession and ownership in any way. That the defendant Kilpatrick brought an action in replevin in said district court against the said J. M. Reid and others, to recover the possession of the said personal property, but was unable to obtain but a small portion thereof. That afterwards, by the consent of the plaintiff, the matters in difference between James M. Reid and the plaintiff and these defendants were compromised and settled, whereby the said premises were left in the occupancy and possession of James M. Reid and the plaintiff's other children for the period of two years, whereby the defendants lost the use and rents thereof, to the defendants' damage of the amount of $2,000, but the personal property received by and turned over to the defendants by plaintiff amounted in value only to the sum of $1,000, and was $3,000 less than that represented by the plaintiff as aforesaid. That the defendants necessarily expended large sums of money in costs and litigation, in endeavoring to recover possession, and were put to great trouble, expense, and loss of time in that behalf, to their damage in the sum of $1,500. That they paid the taxes on said premises for the years 1883 and 1884, amounting to the sum of $150, which were a lien upon said mortgaged premises, and which should have been paid by said plaintiff. That by reason thereof the defendants have been damaged and are entitled to recover of the plaintiff the sum of $6,650, which, with the mistake on said note and mortgage of $1,000,...