Stuht v. Sweesy

• Decision Date: 02 June 1896
• Citation: 67 N.W. 748,48 Neb. 767
• Parties: STUHT v. SWEESY.
• Court: Nebraska Supreme Court

48 Neb. 767

67 N.W. 748

STUHT

v.SWEESY.

Supreme Court of Nebraska.

June 2, 1896.

Syllabus by the Court.

1. A motion to strike out portions of a pleading should designate with particularity the averments which it attacks.

2. A judgment will not be reversed because of the overruling by the court of a motion to require the plaintiff to separately state his causes of action, notwithstanding the fact that the petition might be construed as declaring on two contracts, when, by a fair construction, it may be construed as declaring on one only, with the other pleaded as matter of inducement, and where the court, on the trial, instructed the jury as to the issues on the latter theory.

3. A past consideration is sufficient to support a promise when the consideration was performed in pursuance of a previous request.

4. In such case, the previous request, the performance of the consideration, and the subsequent promise constitute a single contract; and, where it would otherwise be within the statute of frauds, the performance by one party, although preceding the promise, may be sufficient to take the case out of the statute.

5. Accordingly, where one of two adjoining proprietors was about to build upon his land, and, at the request of the other, constructed a party wall, situated half on the land of each, and the other, after the completion of the wall, promised to pay one-half the cost thereof, the case is not within the statute of frauds, and a recovery can be had upon the promise to pay.

6. The rule excluding evidence of offers to compromise existing disputes does not exclude evidence of offers to compromise a dispute which form the basis or constitute a part of a contract actually compromising such dispute, when such last contract is sued upon.

Error to district court, Douglas county; Hopewell, Judge.

Action by William F. Sweesy against Ernest Stuht. There was a judgment for plaintiff, and defendant brings error. Affirmed.E. J. Cornish and W. T. Nelson, for plaintiff in error.

Kennedy, Gilbert & Anderson, for defendant in error.

IRVINE, C.

Sweesy brought an action against Stuht, alleging in his original petition that Stuht was in 1888 the owner of the north one-third of lot 5 in block 169 in the city of Omaha, and that Pauline Chapman was the owner of the south two-thirds of that lot; that there was executed and delivered by said persons a written agreement, whereby a party wall was to be maintained on the division line between their said lots. A copy of this contract was attached to the petition. It is unnecessary here to set out its terms beyond the facts that it provided that the party first having occasion to build should construct the wall, which should be of strength sufficient to support a building three stories or more in height, and that the other party should contribute one-half the cost of the same, payable as the work progressed, on estimates made by the architect or superintendent of the building. The petition further alleged that in March, 1890, Sweesy became the owner of the Chapman lot; and that in the year 1890 he constructed a building thereon, embracing a party wall, in accordance with the contract. He prayed judgment for one-half the cost of said wall up to and including the third story, to wit, $969.63. A general demurrer to this petition was sustained, obviously on the ground that the contract did not run with the land, and that Sweesy could therefore not avail himself of its benefits. Thereupon Sweesy filed an amended petition, containing all the averments of the original, but alleging, in addition thereto, that, when plaintiff was about to erect his building, he and the defendant agreed that the party wall should be constructed on the division line between their respective lots, and that, after the completion of the building, the defendant, in consideration of the construction and completion of said wall, promised and undertook to pay plaintiff one-half its cost, up to and including the third story. A motion was made to require the plaintiff to separately state his cause of action, and also to strike out of the petition all averments with relation to the contract between the defendant and Pauline Chapman. This motion was overruled, whereupon the defendant answered, admitting the ownership of the premises as alleged, admitting the existence of the Chapman contract, and denying all other allegations of the petition. A trial was had, resulting in a verdict for the plaintiff for the amount claimed. The defendant brings the case here for review by proceedings in error.

The petition in error contains 51 assignments of error. Many of them present the same questions of law; and the case can best be disposed of by a consideration of the general legal questions to which the assignments relate, without separate reference to each of the assignments.

The defendant contends that the court erred in overruling the motion to require the plaintiff to separately state his cause of action, and to strike out of the petition that portion relating to the contract between Stuht and Pauline Chapman. The theory of this motion was that the plaintiff, in a single count, declared upon the Chapman contract, and also upon a subsequent parol contract; that the sustaining of the demurrer to the original petition took out of the case all consideration of the Chapman contract. We construed the amended petition, however, as declaring only upon the subsequent parol contract between the parties to this action, and as pleading the Chapman contract as matter of inducement. It is very probable that the district court should, on a proper motion, have stricken out some of the averments. But the motion did not specify any particular portions which should be stricken out, but left the court to surmise or determine what portions the pleader meant as referring to...