Zetterlund v. Texas Land & Cattle Company

• Decision Date: 09 June 1898
• Docket Number: 8172
• Citation: Zetterlund v. Texas Land & Cattle Company, 75 N.W. 860, 55 Neb. 355 (Neb. 1898)
• Parties: OLOF ZETTERLUND ET AL., APPELLEES, v. TEXAS LAND & CATTLE COMPANY ET AL., APPELLANTS
• Court: Nebraska Supreme Court

75 N.W. 860

55 Neb. 355

OLOF ZETTERLUND ET AL., APPELLEES, v. TEXAS LAND & CATTLE COMPANY ET AL., APPELLANTS

No. 8172

Supreme Court of Nebraska

June 9, 1898

APPEAL from the district court of Douglas county. Heard below before AMBROSE, J. Reversed.

Judgment of the district court reversed and action dismissed.

Congdon & Parish, Estabrook & Davis, McCabe, Wood, Newman & Elmer and W. D. McHugh, for appellants.

Bartlett Baldrige & De Bord, Chrytraus & Deneen, George Swartz, and Kennedy, Gilbert & Anderson, contra.

OPINION

RYAN, C.

On September 5, 1892, the Texas Land & Cattle Company, a corporation, as party of the first part, entered into a written agreement with Victor Rylander and August Jernberg as partners composing the firm of Jernberg & Rylander, parties of the second part. By the terms of the contract the parties of second part undertook for the first party to sell a large amount of real property known as the K. O. Ranch, situate in the state of Texas, on certain fixed terms and for agreed rates of compensation. In this agreement there was the following provision: "It is also understood and agreed that this contract is not assignable or transferable by the parties of the second part, and any one accepting such assignment or transfer shall receive no rights or equities under the contract by reason of such transfer and assignment, and said party of the first part shall, at its option, be relieved of its obligations hereunder." On February 20, 1893, the above named August Jernberg and Victor Rylander, as a partnership firm and as party of the first part, entered into a written contract with Ernest Bihl, Olof Zetterlund, Jonas Adling, and Adolph Osterholm, representing the Southern Land Company, a partnership firm, as parties of the second part, by the terms of which the second parties assumed all outstanding obligations to agents connected with the K. O. Ranch, and all expenses incurred or to be incurred in the handling of the K. O. Ranch, and agreed to meet all requirements of the contract between the Texas Land & Cattle Company and Jernberg & Rylander, and, in consideration of the above assumption of said firm's liabilities and of the receipt of one dollar, said firm gave to the parties of the second part the exclusive handling and charge of all the lands in said K. O. Ranch and all said firm's right, title, and interest in and to the same. Under this arrangement the Southern Land Company transacted the business above undertaken by them until June 15, 1893, when the Texas Land & Cattle Company, as it claimed pursuant to its right reserved so to do, notified Jernberg & Rylander and the individual members of the Southern Land Company that the contract originally entered into for the sale of the K. O. Ranch was canceled. Until June 10, 1893, or thereabouts, it was not known to the Texas Land & Cattle Company that there had been an attempted assignment of the contract to which it was a party for the sale of the lands composing the K. O. Ranch. On December 7, 1894, the individuals composing the firm known as the Southern Land Company began their action in the district court of Douglas county to obtain an accounting with the Texas Land & Cattle Company of the amounts due said plaintiffs by reason of their services rendered in the sale of lands composing part of the K. O. Ranch. In this action there were joined as defendants with the Texas Land & Cattle Company certain judgment creditors of August Jernberg and Victor Rylander, in favor of whom there were in existence orders in garnishment requiring the Texas Land & Cattle Company to pay into court certain amounts due and to become due as commissions for the sale of lands of the K. O. Ranch under the terms of the contract entered into by the Texas Land & Cattle Company. One Carl E. Elving, by his petition of intervention, alleged similar facts and asked for like relief to that prayed by the members of the Southern Land Company. No separate review of this branch of the case need therefore be undertaken. The services for which compensation was sought to be obtained were partly rendered as agents of Jernberg & Rylander before the assignment by the firm of its interest in the contract with the Texas Land & Cattle Company, and partly afterward. It is unnecessary to consider those rendered before said assignment, further than to say that the claimants were employed as agents of Jernberg & Rylander and as such earned whatever compensation they were entitled to receive. By the contract for the sale of the lands constituting the K. O. Ranch, Jernberg & Rylander agreed to bear all the expenses necessary to make...