Worthington v. Worthington
| Decision Date | 30 June 1891 |
| Citation | 49 N.W. 354,32 Neb. 334 |
| Parties | CATHARINE WORTHINGTON, ADMINISTRATRIX, APPELLANT, v. CHARLES E. WORTHINGTON ET AL., APPELLEES |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Lancaster county. Heard below before CHAPMAN, J.
AFFIRMED.
B. F Johnson, and Pound & Burr, for appellant, cited: Shuman v. Willets, 17 Neb. 478; Haines v. Spanogle, 17 Neb. 637; Hanlon v. Wilson, 10 Neb. 138; Fisher v. Moolick, 13 Wis. 358; Sch. Dist. v. Macloon, 4 Wis. 79; Bomier v. Caldwell, 8 Mich. 463; McHugh v. Smiley, 17 Neb. 620; Uhl v. May, 5 Neb. 157; Filley v. Hopkins, 1 Neb. 134; Parks v. Jackson, 11 Wend. [N.Y.] 464; McKinzie v Perrill, 15 Ohio St. 168.
Stearns & Strode, contra, cited cases referred to in opinion.
This is an action for specific performance of an alleged contract to convey real estate, by Thomas Worthington against Charles E. Worthington, James Spencer, and Thomas Woods. From a decree for defendants, plaintiff appeals.
On the 31st day of May, 1886, the defendant Spencer entered into a written contract with Charles E. Worthington, a son of the plaintiff, for the purchase and sale of lot 7, in block 1, in Spencer's addition to the city of Lincoln. The consideration agreed upon, and expressed in the contract, was $ 1,200, of which $ 200 was paid by Charles E. Worthington in cash at the time. He also assumed the payment of a mortgage of $ 200 against the premises, and gave Spencer his thirty-two promissory notes of $ 25 each, payable one on the first day of each month, with interest at ten per cent from date. Spencer agreed to convey by deed of general warranty, upon the payments being made.
The plaintiff contends that about the first day of June, 1886, he purchased the property of his son, Charles E. Worthington, under a verbal agreement for a warranty deed; that by the terms of the agreement plaintiff assumed all future payments named in the written contract between his son and Spencer; that by virtue of the agreement he took immediate possession of the premises, made improvements thereon, and that he has paid $ 60 of the purchase price, and tendered payment of the balance.
The defendants deny that the plaintiff ever made a contract of any kind with Charles E. Worthington for the purchase of the property, or that he took possession under any contract of purchase, but allege he went into possession as a tenant of the son, and that the $ 60 was paid solely as rent.
It appears that about the first day of September, 1886, Charles E. Worthington surrendered to Spencer his contract for a deed, and the money advanced by Charles was refunded to him. On September 2, 1886, Spencer sold and conveyed the lot to the defendant Thomas Woods for $ 1,250, which, after deducting the commissions paid to the real estate agent who negotiated the sale, made the actual consideration received by Spencer the same as the contract price on the former sale.
The principal issue of fact presented to the trial court for determination was, whether a contract ever existed between the plaintiff and his son for the purchase of the lot.
Thomas Worthington, the plaintiff, testified that at the time Charles E. Worthington, his son, contracted with Spencer for the property, plaintiff was engaged in the butcher business in Lincoln, at the corner of Sixteenth and O streets. When his son came to him and asked him to buy the property in litigation to save paying rent, at the same time telling him that he, Charles, would pay $ 200 or $ 300 thereon, and that plaintiff could pay the balance, that plaintiff then went with his son and looked over the property, and talked with Spencer, who urged the son to buy the property for his father. That an agreement between the father and son, relative to the purchase of the lot was then made in Spencer's presence, whereby the contract was drawn in the name of the son, who paid the $ 200 to Spencer, and plaintiff was to pay the balance of the consideration as it fell due.
The plaintiff further testified that his son agreed to let the $ 200 paid by him to Spencer go to plaintiff's benefit, in consideration of his having taken care of his son's child for several years. That plaintiff moved onto the property shortly after June 1, repaired the house, which had formerly been used as a blacksmith shop, built an addition to it, and put in an ice box for his meat market; that when the first note fell due, Spencer brought him a receipt calling for $ 30 for rent, and that plaintiff refused to pay the same, saying "I don't pay no such note as that there--no such bill, no such receipt; I don't pay at all, I moved away from Riordan block to save paying rent," and that Spencer then scratched off the words "for rent"; that the following month a second receipt was brought by Spencer for $ 30 "for rent," and plaintiff again refused to pay the same on the ground that he was paying for the property and not paying rent, and Spencer again scratched out the words "for rent," and thereupon plaintiff paid the money.
The plaintiff also testified that he tendered to Spencer the payments as they fell due, who refused to accept the money.
The plaintiff is corroborated by the testimony of W. H. Graham, plaintiff's wife Catharine, and his sons William and Samuel.
Charles Worthington testified that his father was not present when the contract between himself and Spencer was made; that h...
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