Stadelman v. Fitzgerald

• Decision Date: 20 March 1883
• Parties: WILLIAM STADLEMAN, APPELLANT, v. JOHN FITZGERALD, APPELLEE
• Court: Nebraska Supreme Court

15 N.W. 234

14 Neb. 290

WILLIAM STADLEMAN, APPELLANT, v. JOHN FITZGERALD, APPELLEE

Supreme Court of Nebraska

March 20, 1883

APPEAL from the district court for Cass county. Tried below before POUND, J.

AFFIRMED.

S. P Vanatta, for appellant.

Marquett Deweese & Hall, for appellee.

OPINION

MAXWELL, J.

This is an action to enforce the specific execution of an alleged contract of the defendant for the conveyance to the plaintiff of the west 1/2 of lot 2 and the east 1/2 of lot 3, in block No. 34 in the city of Plattsmouth. The memorandum of the alleged agreement is as follows:

"PLATTSMOUTH NEB., Jan. 18, 1881.

"Received of William Stadelman twenty-five dollars in part payment for west 1/2 lot 2 and east 1/2 lot 3, block 34, Plattsmouth, Nebraska, for which and upon payment of balance due inside of thirty days from date, I agree to make him a warranty deed for said premises. Balance due $ 1,575."

This is signed in the name of Fitzgerald by an agent. The authority of the agent is denied. On the trial of the cause in the district court, judgment was rendered in favor of the defendant. The plaintiff appeals to this court.

Sec. 3 of chap. 32 of the Comp. Statutes provides that: "No estate or interest in land, other than leases for a term not exceeding one year, nor any trust or power over or concerning lands, or in any manner relating thereto, shall hereafter be created, granted, assigned, or surrendered, or declared, unless by act or operation of law, or by a deed or conveyance in writing, subscribed by the party creating, granting, assigning, surrendering or declaring the same."

Sec. 5 provides that: "Every contract for leasing, for a longer period than one year, or for the sale of lands, or any interest in 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."

Sec. 23 provides that: "The term 'conveyance' as used in this chapter, shall be construed to embrace every instrument in writing (except a last will and testament) whatever may be its form, and by whatever name it may be known in law, by which any estate or interest in lands is created, alienated, assigned, or surrendered."

Sec. 25 provides that: "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."

A contract, or at least a note or memorandum thereof for the sale of real estate, must be in writing. In 2d Kent's Comm., 613, it is said: "Though the statute of frauds of 29 Charles II. requires in certain cases a contract for the sale of goods to be in writing, and signed by the party to be charged, or by his authorized agent, the authority to the agent need not be in writing. It may be parol." Chitty on Commercial Law, vol. III., p. 104. Lord Eldon, 9 Ves. 250. Stackpole v. Arnold, 11 Mass. 27. Long v. Colburn, 11 Mass. 97. Northampton Bank v. Pepoon, 11 Mass. 288. Ewing v. Tees, 1 Binney 450. Shaw v. Nudd, 8 Pick. 9. Turnbull & Phyfe v. Trout, 1 Hall (N.Y.) 336. McComb v. Wright, 4 Johns. Ch. 667.

And in Riley v. Minor, 29 Mo. 439, and Rottman...