Woodworth v. Thompson
| Decision Date | 05 March 1895 |
| Citation | 44 Neb. 311,62 N.W. 450 |
| Parties | WOODWORTH v. THOMPSON. |
| Court | Nebraska Supreme Court |
1. Evidence examined, and held sufficient to sustain the verdict.
2. Where a tenant is not obligated by his lease to make any particular repairs, a subsequent parol agreement, whereby certain extensive repairs are agreed upon, the landlord promising to pay the cost thereof above a certain sum, is valid, and will be enforced.
3. In such case, the making of the repairs by the tenant, and his promise to pay a portion of the cost, constitute a sufficient consideration for the landlord's promise.
4. It is not reversible error for the trial court to refuse to strike out a portion of the answer of a witness in a deposition, because the answer stated the witness' conclusion as to the effect of language used by one whose conversation is related, instead of repeating the language itself, the answer being probative in its character, and material to the issues, and no objection having been made until the deposition was read at the trial.
5. Where an amended pleading has been filed, the original loses its force as a pleading, and the adverse party may not read it to the jury, or comment upon it in argument, without first offering it in evidence.
Error to district court, Douglas county; Davis, Judge.
Action by Lucian Woodworth against F. L. Thompson. Judgment for defendant, and plaintiff brings error. Affirmed.Brown & Talbot, for plaintiff in error.
Brome, Andrews & Sheean, for defendant in error.
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...
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State v. French, A-00-516.
...928, 546 N.W.2d 801 (1996) (upon filing of third amended petition, preceding petitions ceased to have any function); Woodworth v. Thompson, 44 Neb. 311, 62 N.W. 450 (1895). Although our research has not uncovered a criminal case setting forth this holding, dicta contained in the Nebraska Su......