Woodard v. Baird

• Decision Date: 03 January 1895
• Docket Number: 6786
• Citation: 61 N.W. 612,43 Neb. 310
• Parties: NELLIE WOODARD v. PERRY E. BAIRD ET AL
• Court: Nebraska Supreme Court

61 N.W. 612

43 Neb. 310

NELLIE WOODARD v. PERRY E. BAIRD ET AL

No. 6786

Supreme Court of Nebraska

January 3, 1895

ERROR from the district court of Dawes county. Tried below before KINKAID, J.

AFFIRMED.

Spargur & Fisher, for plaintiff in error.

C. H Bane, D. B. Jenckes, W. W. Wood, Perry E. Baird, and J. R Webster, contra.

OPINION

IRVINE, C.

Perry E. Baird and Mary J. Baird were plaintiffs in the district court, and Nellie Woodard defendant. The moving party in this court is Nellie Woodard, who filed a transcript here accompanied by a petition in error, and also by a paper entitled "Assignments in error upon appeal." The case was in its nature appealable, and from the briefs it would seem to be the object of Woodard to have the case treated as brought here both by appeal and by petition in error. This course is not permissible. A party must elect which remedy to pursue, and having filed a petition in error, she must be presumed to have selected that remedy. The case will, therefore, be treated as a proceeding in error. ( Burke v. Cunningham, 42 Neb. 645, 60 N.W. 903.)

On March 12, 1892, the Bairds entered into a written contract with Woodard, providing that the Bairds agreed to lease to Woodard the "east one-half of the west 44 feet of lots 15, 16, 17, in block 11, in the city of Chadron, being the east one-half of the brick building known as Central Block;" that the lease should begin April 1, 1892, and terminate October 1, 1893, and that in consideration thereof Woodard should pay to the Bairds $ 800 upon the execution of the lease; $ 223.66 on or before June 1, 1892; $ 40 on or before July 1, 1892; $ 80 on or before January 1, 1893; one-half of the taxes upon Central Block for 1892 to be paid on or before May 1, 1893; $ 80 on or before July 1, 1893, and one-half of the premium necessary to keep the Central Block insured in the sum of $ 6,000 during the continuance of the lease. The contract then proceeded as follows: "Now, therefore, it is agreed that if the above covenants and agreements are kept and performed by the said party of the second part, and the said sums paid as stipulated therein, then, and upon the fulfillment of those covenants and conditions, the said party of the first part will, at the expiration of the said lease, sell and transfer to the party of the second part the said property herein leased, with the usual covenants of warranty, upon the terms and conditions as follows: Two thousand six hundred and twenty-five dollars to be paid down in cash by the said party of the second part to the said party of the first part when the sale and transfer of said property is made, to-wit, upon the 1st day of October, 1893, and for the balance of the consideration for said property the said party of the second part shall at the same time, to-wit, upon the 1st day of October, 1893, execute and deliver to said Perry E. Baird two notes in the sum of $ 500 each, in favor of said Perry E. Baird, and secure the same by mortgage upon the property herein above mentioned, to be purchased by the said party of the second part upon October 1, 1893; one of the said notes to be due and payable on or before April 1, 1894, and one to be due on or before October 1, 1894; and each of said notes to draw interest until paid at the rate of ten per cent per annum, interest payable semi-annually, thus making the total sum of $ 3,625 in money and notes to be paid by the said party of the second part at the time the sale and transfer of said property is made, to-wit, upon the 1st day of October, 1893, which sum is in addition to the sums which are to be paid under the said lease prior to October 1, 1893.

"It is further agreed that if the party of the second part should desire to procure a loan to enable her to meet the payment of the said $ 2,625 to be made at the time of the purchase of said property, to-wit, October 1, 1893, the said party of the second part shall be allowed to secure said loan to the extent of $ 2,000, by giving a first mortgage upon said property to be bought by her as aforesaid, providing the face value of the note or notes thus to be secured by the said mortgage shall not in the aggregate exceed the sum of $ 2,000, and in case the said loan of said $ 2,000 shall be made by the said party of the second part and secured by mortgage as stated above, then and upon that event the two notes of $ 500 each, in favor of said Perry E. Baird, which have been mentioned above, shall be secured by mortgage upon said property, second to the said mortgage of $ 2,000, otherwise the said two notes of $ 500 each are to be secured by first mortgage, provided always that this agreement is not a present sale of said property, but is an agreement to sell at a future time upon the fulfillment of certain conditions precedent to said sale, and the title, ownership, and possession of the said property remains in the party of the first part until the sale and transfer is made, and the possession of the party of the second part under the lease herein specified to be made, is and shall be in the possession of the tenant and not of the ownership, and the party of the first part shall have the right to take possession of said property by the terms of the said lease, as provided by law in leasing property, in the same manner as though this agreement were not made, providing that the terms of the said lease are not complied with.

"It is further provided and agreed that this contract and agreement is not to be delivered to either of the parties hereto, but is to be placed in the escrow with the Bank of Chadron, and is to be returned to the parties of the first part, or either of them, on or by the 1st day of November, 1893, providing the covenants and agreements made by the party of the second part shall not by that time be fulfilled, and upon the failure of the party of the second part to fulfill her covenants and agreements by the 1st day of November, 1893, then and in that case, the parties of the first part shall be released from any and all obligations under this contract and agreement."

On the 16th day of October, 1893, this action was begun, the...