Слике страница

bere sought to be foreclosed on lot 7, block 22, in the city of Omaha. The title to this lot at that time was in Mr. and Mrs. McCoy as joint tenants, but that fact was unknown to Forbes, and Mr. and Mrs. McCoy appear to have been ignorant of the same. Edward Creighton brought suit on the $2,000 note against George A. McCoy and George W. Forbes, when the same was due, and on June 10, 1872, obtained judgment against McCoy and Forbes for $2,286. In this judgment, however, Forbes was certified as surety only. On July 2, 1872, Creighton caused an execution to issue on said judgment, and be levieil upon said lot 7, block 22. The same was regularly advertised, and sold on the 10th day of August, 1872. At this time Forbes was largely indebted to William Vorce, one of the defendants herein. Realizing his ultimate liability upon the note for whatever the property failed to pay, and to protect himself and prevent a sacrifice of the property, he had John L. Webster attend the sale, and bid it in at sheriff's sale for William Vorce; Forbes paying the purchase price, $1,605, whereby he was liquidating his indebtedness to Vorce. At this time Vorce knew nothing about the transaction, but it was subsequently ratified, as Vorce afterwards accepted the sheriff's deed, and gave Forbes credit for $1,605. Forbes did not know at the date of the sale that Mrs. McCoy owned an undivided half of this lot. Forbes was afterwards compelled to pay the balance of this judgment, $786.58, whereby the conditions of this mortgage became operative. The execution was issued against McCoy and Forbes, and such interest sold by the sheriff as McCoy had in the property, and nothing more. Mrs. McCoy afterwards ascertained the condition of the title, and was threatening to bring suit against Vorce to recover her undivided half, when Forbes, learning of the situation, notified Vorce of his mortgage against her interest. Vorce ignored said mortgage, and, after this suit was brought and the same was pending, paid Mrs. McCoy $1,250 in settlement. A house was afterwards built upon the east half of this lot by Forbes, with the consent of Vorce, to pay his debts to Vorce. Forbes was unable to pay for it wholly, however, and Vorce had to pay the difference, after Forbes had expended some money, the amount of which is uncertain.

The defendants contend that plaintiff is estopped from claiming the benefits of his mortgage, and this is the only question for the consideration of this court. The plaintiff claims that to constitute an estoppel, “triere must have been a false representation, or a concealment of material facts. The representation must have been made with knowledge of the facts. The party to whom it was made must have been ignorant of the truth of the matter. It must have been made with the intention that the other party should act upon it. The other party must have been induced to act upon it.” Bigelow, Estop. 484. Mr. Forbes was well aware, at the time he had the sheriff's deed for the lot in question made to Vorce, that he possessed a mortgage upon said lot. If he intended to assert any rights under this mortgage as against Vorce, he should have informed him of that fact. But it may be said that as he had not paid the amount due Creighton over and above that received from the sale of the lot, that therefore his rights under the mortgage had not become absolute. This, however, could make no difference. He well knew at that time the existence of the mortgage under which he claims, and if he intended to assert any rights thereunder he should have informed Vorce of that fact; otherwise in equity he will be estopped to claim under the mortgage. The leading case on this subject is Pickard v. Sears, 6 Adol. & E. 469. This was followed by Freeman v. Cooke, 2 Exch. 654, and Cornish v. Abington, 4 Hurl. & N. 549, and In re Railway Co., L. R. 3 Q. B. 584. In the case of Bank v. Bank, 50 N. Y.575, 582, the court says: “We hold that there need not be, upon the part of the person making a declaration or doing an act, an intention to mislead the one who is induced to rely upon it. There are cases in which parties have been estopped where their acts or declarations have been done or made in ignorance of their own rights, not knowing that the law of the land gave them such rights. Here certainly there could be no purpose to mislead others, for there was not the knowledge to inform the purpose, and both parties were equally and innocently misled. Indeed, it would limit the rule much within the reason of it if it were restricted to cases where there was an element of fraudulent purpose.

In very many of the cases in which the rule has been applied, there was no more than negligence on the part of him who was estopped; and it has long been held that where it is a breach of good faith to allow the truth to be shown, there an admission will estop. Gaylord v. Van Loan, 15 Wend. 308. There are decisions where the rule has been stated as the plaintiff claims it. We have looked at those cited. It was not necessary to the conclusions of the court in those, that such a restriction should be put upon the rule.” In Blair v. Wait, 69 N. Y. 113, the court say: “That it is is not necessary to an equitable estoppel that the party should design to mislead. It is enough that the act was calculated to mislead, and did actually mislead the defendants, while acting in good faith, and with reasonable care and diligence, and that thereby they might be placed in a position which would compel them to pay a demand which they had every reason to expect was canceled and discharged.” See, also, Waring v. Somborn, 82 N. Y. 604; Hurd v. Kelly, 78 N. Y. 588, 597; Malloney v. Horan, 49 N. Y. 111, 115; Jewett V. Miller, 10 N. Y. 402, 406; Shapley v. Ablott, 42 N. Y. 443, 448; St. John v, Roberts, 31 N. Y. 441; Broun v Bowen, 30 N. Y. 519, 541; Lawrence v. Brown, 5 N. Y 394, 401; Frost v. Insurance Co., 5 Denio, 154, 158; Canal Co. v. Hathaway, 8 Wend. 480, 483. This rule was approved by the supreme court of the United States in Kirk v. Hamilton, 102 U. S. 68, and by this court in Gillespie v. Sawyer, 15 Veb. 5:36, 19 N. W. Rep. 449, and State v. Graham, 21 Neb. 329, 32 N. W. Rep. 142, where it was held that where a party knowingly, though it be done passively by looking on, suffer another to purchase or spend money on land under an erroneous opinion of title, without making known his own claim, he will not afterwards be permitted to exercise his legal rights against such person. The fact that after the sheriff's deed to Vorce of lot 7, block 22, it was discovered that the deed to McCoy and wife was joint, and that each thereby acquired an undivided half interest in the lot, while it imposed a heavier burden upon Vorce by requiring him to purchase the title of Mrs. McCoy, it gave the plaintiff no greater rights in the premises than if the entire title had been in McCoy.

2. The construction of the building on the east half of the lot by the plaintiff, in part payment of certain amounts owing by him to the defendant, does not seem to enter into the case. The judgment of the district court is clearly right, and is affirmed. The other judges concur.


(Supreme Court of Nebraska. October 31, 1888.) 1. EMINENT DOMAIN_COMPENSATION-APPEAL-REVIEW.

Where real estate has been condemned for public use, and damages awarded to the land-owner by a jury, and the only error assigned in the supreme court is that the verdict is excessive, the court ordinarily will not vacate or modify the verdict

if it is based on the testimony in the case. 2. SAME.

The question of the amount of damages sustained by the land-owner for a right of way condemned across his land is peculiarly of a local nature, proper to be de

termined by a jury of the county. (Syllabus by the Court.)

Error to district court, Douglas county; HOPEWELL, Judge.

Judgment was rendered in the district court against the Omaha Belt Railway Company, awarding damages to Swan G. Johnson and another for the con

demnation of certain real estate. The railway company bring error, claiming that the award is excessive.

George E. Pritchett, for plaintiff in error. J.J. O'Connor and C. A. Baldwin, for defendants in error.

MAXWELL, J. The plaintiff condemned certain real estate of the defendants situated in North Omaha. The strip condemned was 75 feet in width by 1073 feet in length; being part of the defendants' brick-yard. An appeal from the award of damages was taken to the district court of Douglas county, where, on the trial, the jury returned a verdict for $1,000 principal, and $107.89 interest., A motion for a new trial having been overruled, judgment was entered on the verdict. The error relied upon in this court is that the verdict is against the weight of evidence,-in other words, is excessive. The testimony as to the value of the land taken varies from a few hundred dollars to $1,500. It appears that the land was used by the defendants as a part of a brick-yard; that it had been leveled up and fitted for that purpose at a considerable expense; that they possessed an abundance of clay for the manufacture of bricks, close at hand, and that a pipe connected with the city waterworks extended into their yard for their use. Upon these facts, the question of damages was properly one for a jury, and, where the verdict is based on the evidence, this court cannot ordinarily say that the jury should have adopted the lowest instead of the highest estimate. The question here presented was before the court in Clarke v. Railroud Co., 23 Neb. 616, 37 N. W. Rep. 484, where it is said “that the question of the value of real estate, or damages sustained by a land-owner from a right of way condemned across his land, is peculiarly of a local nature, proper to be determined by a jury of the county where this land is situated; the verdict being based upon the testimony of witnesses acquainted with the land and its value, and capable of making a fair estimate of the damages sustained. Such a jury, thus advised, certainly possess means of knowledge not presented to the court, and their verdict, based upon the testimony, generally will be sustained.” The testimony shows that the defendants sustained heavy damages by reason of the condemnation of the land heretofore referred to, and no suficient reason has been shown for setting aside or modifying the verdict. The judgment is therefore affirmed. The other judges concur.

KAIIN 1. KAIIN et al.


A. entered into a contract with B., by which he agreed to serve B. for the term of one year for a salary of $1,500. Before the expiration of the year B. discharged him without cause. After the expiration of a couple of months, A., being unable to secure employment elsewhere, brought an action for the wages accrued after the discharge. Judgment was rendered in his favor. He afterwards brought another action for similar wages alleged to have accrued after the commencement of the first suit. The judgment in the first action was pleaded in bar of a recovery in the second. It was held that the second action could not be maintained, aintiff

having exhausted his remedy in the first. (Syllabus by the Court.)

Error to district court, Douglas county; WAKELEY, Judge.

Action by Simeon Kahn against Felix Kalın and others for services as traveling salesman. From a judgment entered on a verdict directed for defendants, plaintiff brings error.

C. A. Baldwin and Simon Bloom, for plaintiff in error. Gregory, Day & Day, for defendants in error.

REESE, C. J. The allegations of the petitions filed in this cause in the district court were to the effect that about the 1st of January, 1883, plaintiff and defendants entered into an oral agreement, whereby defenılants employed plaintiff to serve them in the capacity of traveling salesman for the period of one year, commencing January 1, 1883, and ending December 31st of the same year, at a salary of $1,500 for said year; that he served defendants in said capacity, under said agreement, during the months of January, February, and March of said year, but that in the month of March they discharged him from their service without just canse; that he served them faithfully and well, but was prevented from completing his contract by reason of his wrongful discharge by them; that he made diligent efforts to obtain employment up to the 1st day of August, 1883, but that he had failed to do so. Judgment was demanded for the sum of $125, the amount of his wages for July, 1883. Defendants answered, pleading a number of defenses, but one of which we will notice. That one was to the effect that in an action wherein the same plaintiff was plaintiff, and the saine defendants were defendants, before that time tried and determined by the same court, each and every issue joined in this cause were joined and tried in that case, and adjudicated in favor of plaintiff, and that that suit was a bar to a recovery in this case. Upon the trial the court, on motion of defendant, gave the following instruction to the jury, over plaintiff's exceptions: “It appears from the evidence, and without dispute, that the issues of fact joined in this case are identical with the issues joined in a case tried in this court at the May term, 1886, between the same parties, in which the plaintiff recovered a judgment. That being the case, , and the matters having already been once adjudicated, your verdict will be for the defendants.” A verdict was returned in accordance with the foregoing instructions, and upon which a judgment was rendered in favor of defendants. Plaintiff brings the cause to this court by proceedings in error. The basis of the instruction above copied is the averments of the petition in the prior case, together with those of the answer. Those papers were introduced in evidence, and plaintiff and his witnesses testified that they referred to the same contract for service, discharge, and money demand, except that the suit was brought for wages due for the month of July instead of for the month of April, as in the former case. It could serve no good purpose to copy the petition in the foriner case, nor even to give a synopsis of it; for it is, with the exception state), in the same language as is the one in the case at bar. There is nothing in the petition in either case which can be construed into an averment that plaintiff's wages were to be paid him monthly, nor at any stated periods during his service. The averments are plain and unequivocal that by the contiact defendants employed plaintiff to serve them “in the capacity of traveling salesman for the period of one year, commencing January 1, 1883, and ending December 31, 1883, at a salary of $1,500 for

But one action could be maintained upon such a contract. There was no provision made for payments in installments, and hence no action could be maintained until the contract was executed, or terminated in some other manner. It might be that, had plaintiff waited until the expiration of the year, he could have maintained his action for his salary then due, even had be been deprived of the opportunity to render the service by the wrongful discharge. But he did not do so. He elected to bring his action for a part of the term, and by so doing he exhausted his remedy. Much has been said in the briefs, and upon the oral argument of the case, of James v. Allen Co., 44 Ohio St. 228, 6 N. E. Rep. 246, wherein it is claimed that the question presented in this case was decided. The contract referred to in that case was for employment, the wages to be paid each month during the term; and the court held, upon a full consideration of the question, that, in the case of a wrongful discharge, the employe could maintain but one action for breach of the contract, and that one recovery for such claim was a bar to any future action. We do not see that the question there decided can arise in this case, for the reason already stated, that the contract described in the petition in

said year.

this case was an entire contract, no reference being made therein to payments by installments. In such cases, but one action can be maintained, whether that be for damages arising from a breach of the contract, or for the whole amount due thereon upon the doctrine of constructive service. We think it quite clear that the first action described in the defendant's answer, and as shown by the petition introduced in evidence, was a complete bar to the action in this case. The judgment of the district court is therefore affirmed. The other judges concur.



In a term case a county court may, upon the motion of a party to an action, upon due notice to the adverse party, amend a docket entry to conform to the facts; the

practice in that regard being assimilated to that of the district court. (Syllabus by the Court.)

Error to district court, Johnson county; BROADY, Judge.

Action of replevin by William Grimes against Louis Grosjean. Judgment for defendant, and plantiff brings error. D. F. Osgood and L. C. Chapman, for plaintiff in error.

for plaintiff in error. Clarence K. Chamberluin and A. M. Appleget, for defendant in error.

MAXWELL, J. This is an action of replevin brought in the county court of Johnson county; the value of the property in dispute being about $500. The case was tried on the 7th day of February, 1887, and taken under advisement by the court. It is claimed on behalf of the plaintiff in error, and is cle:trly established by the evidence, that the case was held under advisement until the 9th or 10th day of February, 1887, when judgment was rendered. The judge, however, failed to note on his docket the date of the entry of the judgment, so that it appeared on the docket as if entered on February 7th. Within 10 days from February 10, 1887, the plaintiff tiled his appeal undertaking; but on motion the appeal was dismissel, upon the ground that the undertaking was not filed within the time required by law. The plaintiff thereupon filed a motion in the county court, supported by numerous atlida vits, showing the actual date when judgment was rendered, and asked that court to correct its judgment by inserting the actual date when it was rendered. This motion the court overruled, upon the ground of want of authority. The case was then taken on error to the district court, where the judgment was alfirmed. We have no doubt that a county court in a term case, and upon due notice to the adverse party, may correct a docket entry after the term, in the mode pointed out by the statute. The practice in that regard is assimilated, as far as possible, to that of the district court. The judge, therefore, had authority to insert a date showing when the judgment was rendered to conform to the facts. The judgment of the district, and also of the county, court, is reversed, and the county court directed to insert the proper date at which the judgment was rendered; and, in case the undertaking for an appeal was filed within 10 days thereafter, the appeal will be redocketed in the district court, and proceed to trial therein. The question as to the time for filing an answer in the county court is not presented to this court in such a manner as to show that the plaintiff was injured by the refusal. Reversed and remanded. The other judges concur.



B. was duly appointed administrator of the estate of A., deceased. C. became B.'s sole surety upon the administrator's bond. B. was removed from his adminis

« ПретходнаНастави »