Woodworth v. Thompson

• Decision Date: 05 March 1895
• Docket Number: 5207
• Citation: 62 N.W. 450,44 Neb. 311
• Parties: LUCIEN WOODWORTH v. F. L. THOMPSON
• Court: Nebraska Supreme Court

62 N.W. 450

44 Neb. 311

LUCIEN WOODWORTH v. F. L. THOMPSON

No. 5207

Supreme Court of Nebraska

March 5, 1895

ERROR from the district court of Douglas county. Tried below before DAVIS, J.

AFFIRMED.

Brown & Talbott, for plaintiff in error.

Brome Andrews & Sheean, contra.

OPINION

IRVINE, C.

The plaintiff in error brought suit against the defendant in error, charging in the first count of his petition that Woodworth had rented to Thompson a hotel building in Omaha at a rental of $ 300 per month, and that upon the rent so reserved there was $ 1,100 due and unpaid. In the second count it was charged that Woodworth had leased to Thompson a piano at a rental of $ 5 per month, and that $ 50 was due on this account. Judgment was prayed for these two amounts.

The second amended answer, on which the case was finally tried was to the effect that after Thompson entered into possession Woodworth, desiring to have certain repairs made, employed Thompson to procure the same to be made and agreed to pay the reasonable price therefor beyond the sum of $ 500; that Thompson caused such repairs to be made to the reasonable value of $ 1,750, whereby there became due him from the plaintiff $ 1,250. Answering the second count of the petition, Thompson averred that the rental price of the piano was $ 4 per month, and that prior to the expiration of the first month the lease therefor was terminated, but the piano was allowed to remain at the hotel at the request of Woodworth. Thompson admitted that there was due to Woodworth $ 1,104, and asked judgment for the difference between that sum and $ 1,250. There was a verdict for the defendant for $ 172.70. From this the defendant remitted $ 27.80, and on overruling the motion for a new trial judgment was entered for $ 144.90, from which judgment the plaintiff prosecutes error.

The plaintiff in error argues that the verdict is not sustained by the evidence. The original lease was in writing and contained a provision as follows: "All improvements on the second story to be made by the party of the second part," Thompson. But the testimony of Thompson was to the effect that the so-called improvements then contemplated, were of a minor character, and after they had been begun it was found necessary or advisable to make very extended repairs. In particular that it was found necessary to renew the plumbing throughout the whole building. Thompson did not feel like undertaking such extensive repairs and thereupon he proposed to Woodworth that the repairs should be made; that he, Thompson, would bear the expense up to $ 500, and Woodworth the remainder. Woodworth agreed to this. This testimony is flatly contradicted by Woodworth, and, perhaps, if the case were presented to us to decide in the first instance we would consider the weight of the evidence in favor of Woodworth, but there was sufficient evidence to sustain Thompson's theory. In this connection the plaintiff in error argues that if such a contract were established it would be void for want of consideration. In support of this proposition several cases are cited to the effect that for one to agree to do what he is already bound to do, or for one to waive a legal obligation on the part of the other, is nudum pactum; but that is not this case. The lease did not require any particular repairs or improvements to be made. Thompson was not obliged to make any improvements, and the agreement to make and in part pay for the particular improvements which were made was a sufficient consideration for Woodworth's promise to pay for the remainder. The deposition of Thompson was read in evidence. This question was asked, "You may now state what conversation or conversations you had with the plaintiff concerning the improvements to be made on the hotel property, and when and where the conversations were had." The witness then proceeded at great length, and without objection, to answer this question. Near the close of his answer he states the proposition which he made to Woodworth in regard to repairs, and proceeds as follows: "This he agreed to do, and he was knowing to all the work that was done. All of it was necessary to the good of the house, and he got the benefit of it all." When the deposition was offered in evidence on the trial, and not before then, objection was made to so much of the answer as we have quoted. This was overruled, and complaint is made of the ruling of the court in that regard.

It is objected that the...