Wells v. Cochran

• Decision Date: 24 April 1909
• Docket Number: 16,055
• Citation: 120 N.W. 1123,84 Neb. 278
• Parties: P. A. WELLS, EXECUTOR, APPELLANT, v. HERMAN E. COCHRAN, APPELLEE
• Court: Nebraska Supreme Court

120 N.W. 1123

84 Neb. 278

P. A. WELLS, EXECUTOR, APPELLANT, v. HERMAN E. COCHRAN, APPELLEE

No. 16,055

Supreme Court of Nebraska

April 24, 1909

APPEAL from the district court for Douglas county: ALEXANDER C TROUP, JUDGE. Reversed.

REVERSED.

Lysle I. Abbott, for appellant.

A. C Churchill, contra.

ROOT J. FAWCETT, J., not sitting.

OPINION

ROOT, J.

A statement of this case may be found in 78 Neb. 612. Upon the second trial the cause was submitted to a jury, and a verdict returned for $ 705.30 in favor of plaintiff, which was set aside on defendant's application. The case was again tried, and at the close of plaintiff's evidence the court directed a verdict in favor of defendant. Plaintiff appeals.

A bill of exceptions of the evidence offered and introduced during each of said trials was preserved. Plaintiff requests, not only that the judgment in favor of defendant be set aside, but that the verdict returned at the preceding trial be reinstated and the district court directed to render judgment thereon.

1. Concerning the last trial, plaintiff complains because the court excluded proffered testimony tending to prove that, before defendant secured from Johnson, now deceased, a contract authorizing a trade of the Frontier county land for Hawver's South Omaha property, Cochran had a tentative arrangement whereby Hawver agreed to give $ 500 boot money, and that knowledge of said fact was withheld and concealed from Johnson by defendant. Plaintiff has not charged defendant with any such dereliction. His cause of action is based upon the allegation that defendant fraudulently concealed from Johnson the fact that Hawver had paid the boot money, and that defendant had converted it to his own use. The testimony should not have been received as part of the case in chief, and was properly excluded in the order in which it was offered. For the reason that no allegation was made with regard thereto, the court also properly excluded evidence tending to show that Hawver paid defendant a commission for bringing about a consummation of the trade referred to.

2. Defendant admitted in his answer that he was authorized by Johnson to consummate an exchange of the real estate referred to in the petition, but alleged that by a separate instrument Johnson agreed that the defendant might have, as compensation for his services, all that Hawver would give over and above the South Omaha property and a certain note and mortgage, and that he received from Hawver $ 471, to which he was entitled, and did retain, under said agreement as his compensation; that thereafter Johnson settled with him, and gave his note for about $ 40, the sum found due defendant. Plaintiff in his reply denied said allegations. On the trial it was shown that defendant during said transaction received $ 471 cash from Hawver, and there is not a scintilla of evidence to show that a penny of this money was ever paid to Johnson. In fact Johnson, in company with Hawver, made a demand on defendant to account for the money received by him.

Defendant argues that the law presumes honesty and fair dealing; that the contract with Hawver entitled him, as Johnson's agent, to receive the $ 471; that the presumption is that whatever he retained was legally and rightfully withheld, and cites Tarvin v. Timberlake, 38 S.W. 491. Therein plaintiff sued his broker for a balance of money collected by the agent on a sale of plaintiff's real estate, and less a reasonable compensation for the agent's services, and the court, over defendant's objections, held that the burden was on pl...