Seberger v. Wood
Decision Date | 06 June 1921 |
Docket Number | 21477 |
Citation | 183 N.W. 363,106 Neb. 272 |
Parties | FRANK SEBERGER, APPELLEE, v. GFORGE W. WOOD ET AL., APPELLANTS |
Court | Nebraska Supreme Court |
APPEAL from the district court for Rock county: ROBERT R. DICKSON JUDGE. Affirmed.
AFFIRMED.
J. J Harrington and A. W. Scattergood, for appellants.
J. A Donohoe and J. A. Douglas, contra.
Heard before MORRISSEY, C. J., ALDRICH, DAY, DEAN, FLANSBURG, LETTON and ROSE, JJ., BEGLEY and LESLIE, District Judges.
On May 15, 1919, George W. Wood, being the owner of the lands and the holder of the school land lease therein described, executed and delivered to F. L. Hutton a writing as follows:
On May 19, 1919, F. L. Hutton, as agent, entered into a written contract with Frank Seberger, by the terms of which Seberger agreed to purchase the said premises for the sum of $ 24,500, payable as follows: $ 1,000 in cash; $ 10,500 on or before July 1, 1919, at which time deed was to be executed, and to give mortgage back on the deeded land for $ 13,000, five years' time, interest at 6 per cent, payable semi-annually. This contract was signed "George Wood, by F. L. Hutton, his agent; Frank Seberger, party of the second part," in the presence of one witness. After the execution of these contracts and on May 20, 1919, Wood entered into a contract in writing by which he agreed to convey the premises to Earl Peterson, who immediately went into possession of the same. Frank Seberger brought this action for specific performance against Wood and Peterson as defendants. The trial court found that Hutton was duly authorized under the contract of May 19, 1919, to sell the lands and make contract therefor; that he entered into a contract with Seberger for the sale of the same, and that Wood was bound thereby; and that Peterson had notice of such sale and of the rights of Seberger thereto at the time he entered into his contract of purchase with Wood; and decreed specific performance of Seberger's contract and that Peterson vacate and surrender possession of the premises to Seberger. Wood alone has appealed.
Appellant contends that Hutton was without authority to sign the contract of sale to Seberger in the name of his principal, because the contract of agency was not signed by both Wood and Hutton, as required by section 2628, Rev. St. 1913. His position is stated in his brief as follows: "The real point which we will rely upon in this case for a reversal is that Hutton is not the agent of the defendant, Wood; that while the defendant, Wood, signed the contract of agency, that contract of agency was never completed as it was never signed by the claimed agent, F. L. Hutton."
It is conceded that to be enforceable the contract must comply with the provisions of the statute of frauds as contained in sections 2625 and 2650, Rev. St. 1913. Section 2625 provides: "Every contract for the leasing for a longer period than one year from the making thereof, or for the sale of any lands, shall be void unless the contract or some note or memorandum thereof be in writing and signed by the party by whom the lease or sale is to be made. " Section 2650 reads as follows: "Every instrument required by any of the provisions of this chapter to be subscribed by any party may be subscribed by his agent, thereunto authorized by writing." The whole case rests upon the construction of the phrase "may be subscribed by his agent thereunto authorized by writing."
The supreme court of California construed a similar section of their statutes in the case of ...
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