Shuman v. Willets

• Decision Date: 29 April 1885
• Citation: 23 N.W. 358,17 Neb. 478
• Parties: JACOB M. SHUMAN, APPELLANT, v. RACHEL C. WILLETS ET AL., APPELLEES
• Court: Nebraska Supreme Court

23 N.W. 358

17 Neb. 478

JACOB M. SHUMAN, APPELLANT, v. RACHEL C. WILLETS ET AL., APPELLEES

Supreme Court of Nebraska

April 29, 1885

APPEAL from Harlan county. Tried below before GASLIN, J.

Reversed.

Fred B Beall and J. E. Bush, for appellant.

John Dawson, for appellees.

OPINION

MAXWELL, J.

This is an action for specific performance of a contract. The court below found the issues in favor of the defendants and dismissed the action. The action is founded on the following instruments:

"ALMA NEB., July 2d, A.D. 1879.

"I have this day sold A. M. Shuman lots 5 and 6, in block 13, in the town of Alma, county of Harlan, and state of Nebraska for the sum of one hundred dollars, to be paid in carpentering at $ 2.50 per day; he to do good average days' works and to have five days' notice of time when work is wanted, and to complete payment within twelve months if work is called for. He to be allowed twenty per cent discount on any part of price of lots paid in cash. He to pay taxes of '79 and to have deed in fee on final payment.

"R. C. WILLETS,

"By Wells Willets, attorney in fact."

"ALMA, NEB., July 2d, A.D. 1879.

"I have this day bought of R. C. Willets lots No. 5 and 6, in block 13, in the town of Alma, county of Harlan, and state of Nebraska, for the sum of one hundred dollars, to be paid in carpentering at $ 2.50 per day; I to do good average days' works; I to have five days' notice of time when work is wanted, and all to be worked out in twelve months if called for in that time. If any of the price is paid in cash a twenty per cent discount is to be allowed on price of lots to the amount paid in cash; deed in fee to be made on final payment; I to pay taxes of '79.

"J. M. SHUMAN."

It is alleged in the petition and not denied in the answer that A. M. Shuman, named in the first instrument, is J. M. Shuman, the plaintiff.

The defendants in their answer to the second amended petition admit that R. C. Willets at the date of the contract was the owner of the lots in question; admit the authority of the agent; allege that the plaintiff refused to perform the carpenter work after due notice to perform the same. That on the 10th of October, 1879, the defendant, R. C. Willets, notified the plaintiff to work after the expiration of five days, and that plaintiff refused to comply with his request; that afterwards it was agreed between said parties that the plaintiff would commence work after the 25th of October, 1879, and labor continuously until he had paid said sum of $ 100, but that he failed to perform said labor; that afterwards on the 20th of November, 1879, the defendant, R. C. Willets, after making a demand for said sum of $ 80 which the plaintiff refused to pay, notified him that said contract was canceled, and the plaintiff acquiesced in said rescission; that after said rescission said R. C. Willets conveyed said lots to one Frank Shaffer, who afterwards conveyed to the other defendants. On the 2d day of July, 1880, the plaintiff tendered the agent of the defendant, Wells Willets, the sum of $ 80, which he refused, and in October following, the plaintiff commenced this action. In his testimony the plaintiff denies that he had an opportunity to do carpenter work. He testifies: "I have never received any notice except once. In the fall of 1879, Willets came to my house and requested that I work on the house in which he is now living, and gave me five days' notice. I said, I am sorry that you did not let me know a day sooner as I have taken a contract at Republican City, but I will put that off and work for you. He said, no, go on with your contract, I can get Greeley to do all that I want done. And that is the only notice I ever received." Mr. Willets does not deny this. In answer to a question whether he notified the plaintiff to work for him, he testifies: "I did; I left word with his wife about the 12th or 15th of September, 1879, and told her to tell him to come and see me. I saw nothing of him. Along in October I went to his house one Sunday evening, that was the only time he was visible, and requested him to work. He played off, saying he had other work, and said he could not leave without doing the work he was on. He claimed he could work for me in two weeks. I told him he might come then. He did not say positively. I waited two weeks, and I saw him one morning hitching up his horses to start away and I started to see him, and he whipped up his horses and run them clear down to the creek." The plaintiff denies this. Willets also testifies that the next time he saw the plaintiff he notified him that he must raise some money to pay the man that he had hired in his place, and notified him that if he did not he would declare the contract forfeited. It appears from other testimony that the amount of money demanded was about $ 12 for a week's work. About November, 1879, Willets sold the lots in question to Shaffer for $ 20 in money, and a number of lots in Republican City. Shaffer sent one Zerbe to see the plaintiff in regard to these lots, and as he testifies, the messenger "came back and said he could not do anything with him (the plaintiff)."

Q. How long was that before you purchased the lots?

A. I think it was a little before.

By Mr. Dawson.

Q. Is it not a fact that it was after the purchase of the lots by you, and you heard that he claimed an interest in them and you wanted to buy it?

A. I think it was before.

Mr Shaffer, therefore, having purchased with notice of the plaintiff's rights, purchased subject to them. The other defendants purchased while this suit has been pending, and since the service of summons in the case, and are chargeable with notice of the plaintiff's rights. Code, § 85. Day v. Thompson, 11 Neb. 123, 7 N.W. 533. It is evident from an examination of the testimony that the plaintiff, at the time the contract was made, was a poor man, that the provision to permit him to perform labor in part or entire payment of the lots was not so much because his labor possessed a peculiar value over that of other carpenters, but to enable him thus to pay for the lots. It will be observed the provision is, that he is "to complete payment within twelve months if the work is called for," and that he is "to be allowed 20 per cent discount on any part of lots paid in cash." When to be paid in cash? Clearly at any time during which he might be required to perform labor as a carpenter. This included at least the whole year, yet we find the defendant, Willets, within five months from the date of the contract with the plaintiff, selling and conveying the lots in question to Shaffer, upon the pretext that he had been compelled to employ another carpenter for a week's work at an expense of $ 12, a gain of $ 3 over the price agreed upon to be paid the plaintiff. But even if the plaintiff had refused to perform labor for the defendant at his request, still there is no provision in the contract that it shall thereupon become null and void, and a court has no authority to interpolate such terms therein. In construing a contract that construction which makes the contract legal and operative will...