Sibert v. Hostick

• Decision Date: 20 April 1912
• Docket Number: 16,675
• Citation: 135 N.W. 1054,91 Neb. 255
• Parties: M. G. SIBERT ET AL., APPELLEES, v. F. E. HOSTICK, APPELLANT
• Court: Nebraska Supreme Court

135 N.W. 1054

91 Neb. 255

M. G. SIBERT ET AL., APPELLEES, v. F. E. HOSTICK, APPELLANT

No. 16,675

Supreme Court of Nebraska

April 20, 1912

APPEAL from the district court for Nuckolls county: LESLIE G. HURD JUDGE. Affirmed.

AFFIRMED.

G. H Bailey and H. A. Brubaker, for appellant.

H. N Marshall and R. D. Sutherland, contra.

ROSE, J. REESE, C. J., not sitting.

OPINION

ROSE, J.

By written contract dated August 11, 1908, defendant leased to plaintiffs a section of land in Nuckolls county from March 1, 1909, to March 1, 1914. Plaintiffs paid $ 200 down, and agreed to pay an annual rental of $ 1,200, one-half on March 1st of each year and the other half on January 1st following. The second payment was to be secured March 1st each year by a note and a mortgage on the crops. Plaintiffs allege that they tendered to defendant March 1, 1909, $ 400 and the stipulated note and mortgage for $ 600, and at the same time demanded possession of the demised premises, which was refused. This is an action to recover damages for defendant's breach of contract. The execution of the lease and the payment of $ 200 are admitted. The tender by plaintiffs, the refusal of possession by defendant, and an oral modification of the lease, permitting defendant to surrender possession a few days after March 1, 1909, are controverted issues. Upon trial to a jury plaintiffs recovered a verdict and judgment for $ 2,460, and defendant has appealed.

The first assignment of error challenges the sufficiency of the evidence to sustain the verdict. Did plaintiffs make the necessary tender and demand possession? Was possession refused? Was the lease modified by parol to permit defendant to surrender possession a few days after March 1, 1909? When the contract was executed there were two houses on the leased section, an old one occupied by defendant and her husband, but not suitable for plaintiffs, and another which had recently been built for the use of tenants. Plaintiffs demanded houses for two families, and defendant in her lease agreed to build a new house on the premises and have it ready for occupancy March 1, 1909, and she did so. Prior to that date the husband of defendant had advertised that he would sell at auction on the premises, March 9, 1909, live stock, farm machinery, grain, hay and household goods. Between 3 and 4 o'clock in the afternoon, March 1, 1909, plaintiffs, with seven or eight wagon loads of property, accompanied by their attorney, a police officer and another witness or two, arrived at the leased premises and found that defendant and her husband were occupying the new house. At the time there were horses, cattle, hogs, feed and machinery on the farm. Plaintiffs, their attorney, and a number of witnesses stopped in front of the new house. Defendant and her husband came out, and a controversy lasting an hour or more ensued. About sundown plaintiffs left with their belongings and did not return. Defendant remained in possession. Plaintiffs had paid $ 200 on their lease, and had abandoned their former home. After leaving defendant's farm, they wandered from place to place in search of another. In the meantime they boarded at hotels, and herded some of their cattle. In contemplation of the lease defendant built a new house for her tenants, allowed most of the stock on her farm to be sold, rented rooms in Superior for her own occupancy, and packed most of the furniture in her old house with a view to moving it. These facts indicate that plaintiffs desired in good faith to occupy the section of land under their contract, and that defendant intended that they should do so. Under such circumstances wise counsel would ordinarily result in the performance of mutual obligations. The record is full of suggestion that litigation for breach of contract should have been avoided.

The testimony on behalf of plaintiffs tends to show that through their attorney they tendered to defendant in front of her new house, March 1, 1909, $ 400 in currency and a note and mortgage for $ 600, in compliance with the terms of the lease; that they demanded exclusive possession; that the tender and the possession were refused; that defendant said complete possession at that time was impossible; that there was room for plaintiffs and defendant in the houses on the place; that the live stock and other property of both parties could be cared for temporarily on the premises; that a sale was advertised for March 9, and that defendant could not surrender exclusive possession before that time. The proofs adduced on behalf of defendant tend to show that no proper tender was made; that defendant, with a camping outfit, was temporarily occupying the new house for the purpose of completing it; that plaintiffs had informed her they did not expect to move March 1st; that they had orally agreed to allow her to remain until after the sale; that after plaintiffs started away, and while they were still on the premises, she moved her...