Seeley v. Smith
| Decision Date | 13 May 1890 |
| Citation | 45 N.W. 922,29 Neb. 545 |
| Parties | Z. L. SEELEY ET AL. v. EDWIN W. SMITH |
| Court | Nebraska Supreme Court |
ERROR to the district court for York county. Tried below before NORVAL, J.
AFFIRMED.
France & Harlan, for plaintiffs in error.
Edward Bates, and Merton Meeker, contra.
COBB CH. J. MAXWELL, J., concurs. NORVAL, J., did not sit on the hearing of the case.
This action originated in the county court of York county, wherein Edward Smith was plaintiff and Zenith L. Seeley and Belle his wife, were defendants. It appears to have been a non-term case, and was tried to a jury, which found for the plaintiff for $ 22.50 and $ 18.85 costs of suit, on which judgment was entered.
The defendants appealed from this judgment to the district court F. M. Bruner and F. J. Parris becoming sureties on the appeal bond in the sum of $ 82.70.
The plaintiff made substantially the same complaint in the district court as alleged in the court below, that he had entered into a contract with defendants to perform certain services for them in selling certain land in the state of Minnesota, and that under their contract they were indebted to him in the sum of $ 200. The answer of defendants was a general denial, and also a set-off.
In the district court the cause was tried without a jury, the court finding for the plaintiff in the sum of $ 200 as against Z. L. Seeley and non-assumpsit as to his wife. Judgment was entered against Seeley for that amount, and for costs, and further, that the plaintiff recover of the sureties, Bruner and Parris, $ 82.70, to be considered as a part of the judgment for $ 200 rendered against Seeley. Subsequently, the defendant Seeley, for himself alone, moved for a new trial, which was overruled. The defendants Seeley and Parris bring the cause to this court on error. Several assignments of error are made in their petition, only two of which are argued in the brief of counsel, and to those our attention will be confined.
The cause of action represents that in the month of August, 1886, the plaintiff, at the request of defendants, entered into their service as an agent to trade and dispose of a certain track of land, of 120 acres, situate in the state of Minnesota, for which service defendants agreed to pay the plaintiff $ 200; that plaintiff subsequently traded the land for the benefit of defendants, and has performed all the conditions of the contract on his part, and that the defendants have not paid the consideration, nor any part of it, and that the sum of $ 200 is due.
The first point argued by plaintiffs in error in their brief is that the evidence clearly shows that the plaintiff Smith was the agent of T. A. Gearing, or, at least, that he attempted to gain commissions as an agent from both Gearing and Seeley, for the trade of the land mentioned to Gearing for livery stock. An examination of the evidence shows that this error, or objection, is without substantial foundation. This will be further considered in connection with the second paragraph of the same general assignment, that the judgment of the court is contrary to the evidence.
The plaintiff testified, in his own behalf, that the defendant Seeley employed him to trade off the Minnesota tract of 120 acres of land, in pursuance of which he brought Seeley and Gearing in communication together, and they made a trade about August 1, 1886; that some time in the spring of 1886 Seeley came to plaintiff, stating that he had 120 acres of land in the state of Minnesota; that he wanted to trade it off or sell it, and said, "as you are trading around some, that he would like it if plaintiff could get him a trade, " and stated that there was a man at Utica who owned eighty acres of land a mile and a half from Utica, and desired plaintiff to go and see if he could not effect a trade with him for the eighty acres of land. The plaintiff further testified that it was then agreed that if he would effect this trade of 120 acres of Minnesota land for the eighty acres at Utica the defendant would give him a commission of $ 200. It appears that the plaintiff was not able to conclude this trade, and so informed the defendant that subsequently the plaintiff learned that Gearing proposed to sell or ...
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