Von Knuth v. Ryan

• Decision Date: 21 December 1921
• Docket Number: 21613
• Citation: 186 N.W. 81,107 Neb. 351
• Parties: CHRISTIAN H. VON KNUTH, APPELLEE, v. J. B. RYAN, APPELLANT
• Court: Nebraska Supreme Court

186 N.W. 81

107 Neb. 351

CHRISTIAN H. VON KNUTH, APPELLEE, v. J. B. RYAN, APPELLANT

No. 21613

Supreme Court of Nebraska

December 21, 1921

APPEAL from the district court for Dodge county: FREDERICK W BUTTON, JUDGE. Reversed.

REVERSED.

Abbott Rohn & Robins and John L. Cutright, for appellant.

Baldrige & Saxton and Viggo Lyngby, contra.

Heard before MORRISSEY, C. J., ROSE, ALDRICH and FLANSBURG, JJ GRAVES and WELCH, District Judges.

OPINION

GRAVES, District Judge.

This action was commenced in the district court for Dodge county by Christian H. Von Knuth, who is appellee, against J. B. Ryan, the appellant, for the recovery of $ 800 and interest, as damages arising out of the alleged failure of Ryan to perform the terms of a certain option contract. The trial was to a jury, and at the close of the evidence the plaintiff moved the court to direct a verdict in his favor, which motion was sustained, and there was a verdict and judgment accordingly. Defendant appealed to this court. Subsequent to the trial the plaintiff, Von Knuth, died, and the action was revived in the name of Paul Peterson, his administrator.

The chief error relied upon by the defendant is the action of the trial court in refusing to submit the case to the jury under proper instructions and directing the jury to return a verdict for the plaintiff.

The petition alleges, in substance, that on the 12th day of July, 1919, the defendant was the owner of a certain 80 acres of land, and that on said day defendant entered into a certain written optional contract with plaintiff, wherein he agreed to convey the real estate to plaintiff, or any person designated by plaintiff, in consideration of the price of $ 12,000. The contract is set out in the petition, and the option is for a period of 90 days, recites a consideration of $ 1, and provides for a cash payment of $ 1,500 at the time of the sale, the assumption of a mortgage of $ 6,400, and a payment of $ 4,100 cash on March 1, 1920. The petition alleges, further, that in pursuance of the agreement above mentioned plaintiff sold said premises to one C. G. Miller on the 14th day of July, 1919, and immediately entered into a written contract for the sale of the same with C. G. Miller, who thereupon, it is alleged, made a payment to Von Knuth of $ 1,500 in cash on the purchase price; that immediately upon making the sale aforesaid, it is alleged, appellee made diligent effort to communicate with defendant in order to advise him of said sale and notify him to furnish an abstract and execute a deed, but that plaintiff was unable to find him; that on the 15th day of July, 1919, plaintiff advised defendant of the sale aforesaid, and of his election to take under said option contract, by telegram from Omaha, a copy of which telegram is set out in the petition; that shortly thereafter plaintiff tendered to defendant the initial cash payment of $ 1,500 and demanded that defendant carry out the terms of his agreement, but that defendant absolutely and unconditionally refused, and has ever since refused, to comply with his agreement; that prior to the expiration of the contract between plaintiff and defendant aforesaid, and prior to the expiration of the 90-day option period therein provided, defendant sold the land described to a third person, and thereby incapacitated himself from performing his contract with plaintiff, and placed himself in a position whereby he could not comply with his contract, and thereby repudiated it; that, by reason of the foregoing, plaintiff has sustained damages in the sum of $ 800 and interest from July 15, 1919, for which he prays judgment.

The defendant by his answer denies each and every allegation contained in the plaintiff's petition, except such allegations as are specifically admitted, and admits that on the 12th day of July, 1919, he was the owner of the land described, and further admits that on the 14th day of July, 1919, he sold the aforesaid lands to one Hans McTeason, but denies that at any time he ever entered into an option contract with plaintiff, and denies that he ever signed the instrument, a copy of which is set out in the plaintiff's petition, and alleges that he never signed any contract or written instrument with plaintiff covering said real estate. He admits that he jotted down the terms of sale on a piece of paper and signed his name thereto, but denies that he ever received the consideration expressed in the alleged option agreement, or any consideration whatever, and denies that there was an option period of 90 days in the instrument when signed, or that he authorized plaintiff to insert said period of 90 days in the contract, and denies that plaintiff ever paid or offered to pay him the sum of $ 1,500, or any sum, as a first payment, and denies that the alleged sale to Miller of said land was bona fide, and prays for a dismissal of the action.

The reply is a general denial of all new matter set out in defendant's answer.

The pleadings clearly raise the issues: First, that there was no consideration paid for the option contract sued upon; second, that there was no period of option stated in the contract at the time of the signing of the same; and, third, that the plaintiff, Von Knuth, did not make a bona fide sale of the property to C. G. Miller, as alleged, and had actual notice that the land had been sold to McTeason before he (Von Knuth) notified Ryan that he accepted the option.

From a careful consideration of the record, we find that there is a conflict in the testimony as to whether any consideration was paid, and as to the period of the option, as well as to the bona fides of the alleged sale by the plaintiff t...