Trauerman v. Nebraska Land & Feeding Company

• Decision Date: 18 October 1906
• Docket Number: 14,449
• Citation: 109 N.W. 379,77 Neb. 403
• Parties: ISAAC G. TRAUERMAN ET AL., APPELLANTS, v. NEBRASKA LAND & FEEDING COMPANY, APPELLEE
• Court: Nebraska Supreme Court

109 N.W. 379

77 Neb. 403

ISAAC G. TRAUERMAN ET AL., APPELLANTS, v. NEBRASKA LAND & FEEDING COMPANY, APPELLEE

No. 14,449

Supreme Court of Nebraska

October 18, 1906

APPEAL from the district court for Cherry county: JAMES J HARRINGTON, JUDGE. Reversed.

REVERSED.

Allen G. Fisher, for appellants.

Albert W. Crites, contra.

DUFFIE C. ALBERT and JACKSON, CC., concur.

OPINION

DUFFIE, C.

This is the second appeal in this case. The first trial resulted in a judgment for the plaintiffs, and upon appeal to this court the judgment was reversed and the case remanded. A full and clear statement of the facts in the case by Mr. Justice BARNES may be found in 70 Neb. 795. Upon the second trial judgment went in favor of the defendant, and the case is now here on appeal taken by the plaintiffs below.

As will be seen by the statement of facts given in the first opinion, the suit is to recover $ 1,000 advanced by the plaintiffs as earnest money or part payment made by them upon a purchase of 500 calves to be delivered to them by the defendant at Irwin on October 22, 1900. On the trial the plaintiffs attempted to show that at the time of entering into the written contract, and for the same consideration, there was a further oral agreement that the delivery might, at their request, be delayed for a week or ten days. We held on the former appeal that this evidence was incompetent as varying the terms of the written contract. No material additional evidence was introduced in support of the plaintiff's claim on the second trial, and at the conclusion of the evidence the court directed a verdict for the defendant. The evidence is clear that sometime prior to the 22d day of October, when delivery of the calves was to be made, defendant wrote to the plaintiffs that it had secured the calves and would be at Irwin to make delivery at the time specified. At the time called for by the written agreement defendant had the calves at Irwin ready to deliver, but the plaintiffs were not there to receive them or to make payment for the remainder due. Thereafter, not being able to arrive at a settlement of their dealings, this action was commenced by the plaintiffs to recover the money advanced. The only question, therefore, presented by this appeal is whether a party who has made part payment upon a purchase of property, and who fails to perform on his part, can recover the money so advanced. On this question the authorities, while not numerous, are generally to the effect that he cannot.

In Hansbrough v. Peck, 72 U.S. 497, 5 Wall. 497, 18 L.Ed. 520, it is said: "The party who has advanced money, or done an act in part performance of the agreement, and then stops short and refuses to proceed to its ultimate conclusion, the other party being ready and willing to proceed and fulfill all his stipulations according to the contract, will not be permitted to recover back what has thus been advanced or done."

In Haynes v. Hart, 42 Barb. (N.Y.) 58, the plaintiff attempted to recover money advanced as part of the purchase price of a canal boat. A demurrer to his petition was sustained upon the ground that it showed a breach of the contract on his part. On appeal, the court said: "The plaintiff cannot recover on the ground of his own breach of the agreement; and the contract does not provide for a repayment of the money paid in part performance, in case of a rescission according to the stipulations of the contract. Nor will the law imply a promise in such a case. To allow the plaintiff to recover back the purchase money paid, in a case like this, would be to offer an inducement to a purchaser to violate his agreement. It would give him the use of the canal boat for a year without compensation, and put it wholly in his power to perform or not at...