#### Joshua Rushton, appellee, v. Ambrose S. Campbell et al., appellants.

Filed June 26, 1913.

No. 17,104.

1. Appeal: Remand: Resubmission. The final *per curiam*order in this cause *(McNeny v. Campbell,*81 Neb. 754, 761), remanding the cause for further proceedings, required a resubmission of the issues upon a later trial in the district court.

2. -: Conflicting Evidence. The question of the liability of a defendant upon an alleged obligation with others having been submitted to a trial jury upon conflicting evidence, the verdict of the jury will be sustained, unless clearly and manifestly wrong.

3. Venue. Where a suit was instituted against A, B, and C in W. county, the service of summons being made upon A in that county, the county of his residence, and upon B and C in C. county, the county of their residence, the jurisdiction of the court over B and C depending upon the joint liability of A with them, the verdict of the trial jury finding that all were jointly liable to the plaintiff on the cause of action pleaded in his petition fixed the juris- ■ diction over B and C.

4. Vendor and Purchaser: Rescission: Joint Liability. It was alleged that A represented to the plaintiff that the title to a certain tract of land was held by B and C, but that A had an interest therein, being one of the owners thereof, and that, upon his fa’se and fraudulent representations as to the title and quality of „he land,, plaintiff was induced to enter into a contract for the purchase thereof and make a substantial payment thereon. It is *142*held*that In an action for a recovery, of the money paid, after a rescission of the contract, if the allegations of the petition were sustained by sufficient evidence, and plaintiff was entitled to recover the money so paid, all defendants would be jointly liable therefor and a joint judgment against all would be sustained.

5.-: -. Where a contract for the salo and purchase of land required the payment therefor to be made at a certain time, but contained no provision as to when the transfer of title should be made, the law implies that the payment and conveyance shall be concurrent acts, and that if upon tender of payment at the time agreed upon the vendor is not able to make the transfer of title, and fails so to do, the purchaser may rescind the contract and recover the money paid thereon.

6. Instructions examined and found not to be harmonious, but thiN defendants (appellants) were not prejudiced thereby, and the error did not require a reversal of the judgment.

Appeal from the district court for Webster county: Harry S. Dungan, Judge.

*Affirmed.*

*O. W. Meeker, P. W. Scott*and *L. H. Blackledge,*for appellants.

*Bernard McNeny*and *J. S. (Whom, contra.*

Reese, C. J.

The suit upon the cause of action involved in this case was first instituted by Bernard McNeny, as assignee of Joshua Rushton, against the defendants, and upon trial in the district court the then plaintiff recovered judgment. The defendants appealed to this court and secured a reversal of the judgment and a remand to the district court. The opinion was written by the late Elisha C. Calkins, -Commissioner, and is reported in 81 Neb. 754, 761, where the principal facts are stated. Upon the cause being remanded to the district court, a second trial was had, the jury failing to agree. A third trial was had to a jury, which returned a verdict against all the defendants, on which a judgment was rendered, and from which they appeal.

In view of the statement of facts contained in the *143former opinion, we do not deem it necessary to encumber the record by a repetition thereof. Prior to the last trial McNeny reassigned the claim to Rushton, by whom the case has since been prosecuted, and who is here as appellee. The issues presented are practically the same as upon the former appeal, and all questions of fact have been retried. Had the final judgment of this court upon the former appeal been, entered in accordance with the recommendations of the commissionér, it is quite probable that the conclusion reached might have had an important bearing upon the final determination of the action; but, instead of dismissing the action as to Carpenter, as recommended, the court overruled that part of the judgment and remanded the case for further proceedings, which, in effect, required a new trial of the issues.

As shown by the former opinion, the question of jurisdiction was presented. Carpenter resided in Webster county. Burke and Campbell were residents of Chase county. The suit was commenced in Webster county, where service of summons was had on Carpenter, and service made upon the other two defendants in Chase county. If there was no liability as against Carpenter, the others could not legally be sued in Webster county with service of summons in Chase county. The question of the liability of Carpenter became an important one, as affecting, not only his rights, but those of Burke and Campbell. If Carpenter was interested in the agreement by which Burke and Campbell sold the land to plaintiff, as a party thereto, or had joined with them in the perpetration of any fraud upon Rushton, and Rushton had rescinded the contract, either for fraud or the failure of Burke and Campbell to comply with its terms, and plaintiff was entitled for either reason to recover back the money which he had paid on the attempted purchase of the land, Carpenter would be liable, and the suit could be maintained in Webster county, where he resided and was served with summons.

This question was submitted to the jury upon quite a large volume of conflicting evidence, the claim of plaintiff *144and bis witnesses being in support of tlie alleged statements made by Carpenter to plaintiff, that he was the owner of an interest in the land, that the title was clear and held by Burke and Campbell, as well as statements made to others to the same general effect. This was denied by Carpenter, and it was claimed by him, as well as by Burke and Campbell, that he had no interest whatever in the land nor its sale, and that he did no more than call plaintiff’s attention to the property. The Avritten contract of the sale avus made by Burke and Campbell, Carpenter signing as a Avitness only. But the contention of plaintiff is that this Avas done because it Avas represented by all the defendants that tlie title to the land Avas in Burke and Campbell. It could serve no good purpose to state the evidence upon this part of the case more in detail. It must be sufficient to say that there was a conflict, which it was the province of the jury to settle, as Avell as the inference to be drawn from the conceded acts and declarations of Carpenter. While the evidence leaves the matter in doubt in the mind of the writer, we are admonished that the jurors were the triers of the fact, and with their findings thereon we must be content. The liability of Carpenter being found against him by the jury disposes of the question of jurisdiction over Burke and Campbell, and leaves the case for decision upon the merits as against the three defendants.

The Avritten contract which furnishes the basis of plaintiff’s action is as folloAvs: “This agreement, made and entered into this 11th day of October, A. D. 190G, by and between Joshua Rushton, of the toAvn of Esbon, R. P. D. No. 2, county of JeAvell, and state of Kansas, of the first part, and Burke & Campbell, of Imperial, county of Chase, and state of Nebraska, of the second part, witnesseth: That the said party of the second part covenants and agrees to and with the said party of the first part to transfer by warranty deed, together with abstract posted to date shoAving clear title (to) the southeast quarter of section twenty-nine, in township seven north, of range thirty-*145eight west of the 6th P. M. Possession to be given March 1st, 1907. And the said party of the first part covenants and agrees to pay nnto the said party of the second part, for the same, the sum of four thousand (4,000) dollars, as follows, viz: One thousand four hundred fifty dollars cash in hand, receipt of which is hereby acknowledged. Two thousand five hundred fifty dollars on or before January 20th, 1907. In witness whereof, the parties to these presents have hereunto set their hands, the day and year last above written. (Signed) Joshua Rushton. (Signed) Burke & Campbell. Signed, sealed and delivered in presence of (Signed) A. H. Carpenter.”

It will be observed that, while this writing fixes a definite time for the final payment, there is no stipulation as to when the deed should be delivered. But, as under such conditions the payment of the price and the delivery of the deed are concurrent acts, the deed was due at the time of, and upon the payment or tender of, the purchase price. *Primm v. Wise & Stern,*126 Ia. 528; *Webb v. Hancher,*127 Ia. 269; 39 Cyc. 1334. It may be further noted that the parties so construed the contract. The date fixed for the final payment wras January 20, 1907. On that day a tender is alleged to have been made of the amount due on the contract, and demand made for the deed. Defendants did not procure the deed, nor could they, as they did not have the title to the property. They had an option to purchase, but they had not paid the amount due upon their option, and the title was still in the original owner. Not having title at the time when they should have conveyed, they were not in a position to demand an extension of the time in which to make the conveyance, and the tender of the money and demand for the deed, with their inability to convey, gave plaintiff the right to rescind, which he did, and entitled him to a return of the $1,450 which he had paid. *Webb v. Hancher, supra.*At that time there was an unpaid and unsatisfied mortgage for $1,100 on the land, which should have been satisfied of record before or at the time for the conveyance. Plaintiff was under no *146obligation to pay over tbe purchase price and trust to defendants to satisfy tbe mortgage. His contract provided for a “clear title.” He was entitled to this upon tender of tbe amount due at tbe time provided by tbe contract for payment.

There was a sharp conflict in tbe evidence upon tbe trial as to whether there was a misrepresentation of tbe value of tbe land by defendants to plaintiff before tbe contract of purchase was finally made. A strong showing was made by tbe defense that tbe property was actually worth tbe value placed upon it by the defendants. But, upon tbe other band, evidence was produced to tbe contrary, and this placed tbe solution of tbe question in tbe bands of tbe trial jury. While tbe writer hereof, bad be been tbe trier of fact, might have decided this question of fact in favor of tbe defense, we cannot say that tbe verdict in that regard is not sufficiently supported by tbe evidence. However, did plaintiff’s right to recover depend upon that question alone, tbe plaintiff having seen tbe land and bad the opportunity to know its value, we should seriously question bis right to recover; but, as we view the case, this is not a controlling question. This subject was properly presented to tbe jury by tbe seventeenth instruction, given at defendants’ request.

It is claimed by appellants that there is a conflict between tbe eighth and fifteenth instructions given to tbe jury. By tbe second instruction tbe jury were told that tbe burden of proof was on tbe plaintiff, and, before they would be warranted in returning a verdict in his favor, be must establish by a preponderance of tbe evidence tbe truth of the material allegations of bis petition, not admitted, which were that the sale of tbe land was made by Burke and Campbell for and on behalf of themselves and Carpenter; that plaintiff was induced to enter into tbe contract because of statements made by Carpenter that tbe three were the owners of tbe land, the legal title being held by Burke and Campbell; that such representations or some of them were false when made; that plaintiff re*147lied upon them; and that plaintiff or his assignor rescinded the contract on account of such fraudulent representations, and demanded the return of the money paid. The eighth instruction was to the effect that, if the jury found that Carpenter made the representations that Burke and Campbell had a present perfect title to the land and were able to convey at any time, that plaintiff relying thereon paid to Burke and Campbell the $1,450 as part of the purchase price of the land, that Burke and Campbell did not have the title to the land and were unable to convey, and that plaintiff rescinded the contract therefor, Carpenter would be equally liable with Burke and Campbell. By the fifteenth instruction the jury were informed that, under the undisputed evidence, the title to the land was in Pritchard, the defendants Burke and Campbell holding a lease with option to purchase, and that at the time of making the contract with Rushton they could lawfully make in their own name the agreement made, and the fact that they did not have the full legal title to the premises does not constitute ground for Rushton or his assignee to rescind the contract and demand a return of the purchase money paid. There seems to be no doubt that this instruction is somewhat at variance with other instructions. It was given at the request of defendants, and the three instructions were evidently not so carefully considered as they should have been before being given. But it is not clear that the defense suffered any prejudice thereby. Had the proposition contained in the fifteenth instruction been the only contention in the case, it would have been practically an instruction for the jury to find in favor of defendants; but, as there were other vital issues in the case, it could only have the effect of withdrawing that issue from the consideration of the jury, and wc cannot see that the want of harmony between the instructions must of necessity require a reversal of the judgment.

The case is not without its perplexing questions, but, upon a review of the whole record, we are not satisfied *148that the judgment should be molested. It is therefore

Affirmed.

Fawcett, J., not sitting.

Sedgwick, J.,

dissenting.

It seems to me that the majority opinion is inconsistent with itself. It states two reasons for alloAving the plaintiff to repudiate his contract: That the contract was procured by fraud; and that the defendants did not comply Avith its terms on their part.

The supposed fraud, as stated in the majority opinion, is in the tAvo statements by Carpenter — that he (Carpenter) was the OAvner of an interest in the land; and that the title Avas clear and held by Burke and Campbell. The opinion sIioavs that all the parties knew exactly the condition of the title; that Burke and Campbell had an option to purchase the land, and the plaintiff contracted Avith Burke and Campbell only, knowing at the time that the legal title was in the third party, and that Burke and Campbell intended to give the plaintiff the title by obtaining the deed from the third party Avho held the legal title. If Carpenter made the statement to the plaintiff that he was “the OAvner of an interest in the land,” the plaintiff could not possibly haAre relied upon that statement or Imre been deceived thereby. If Carpenter told the plaintiff that the title Avas clear and held by Burke and Campbell, the plaintiff could not possibly be damaged thereby, because it would make no difference who held the legal title if Burke and Campbell were able to procure the legal title to be conveyed to the plaintiff according to the terms of their contract. It is said in the opinion: “Defendants did not procure the deed, nor could they, as they did not have the title to the property. They had an option to purchase, but they had not paid the amount due upon their option, and the title was still in the original owner.”

The plaintiff caused a written statement to be given to defendants of “our requirements on this title,” in which *149lie demanded: “(3) A general warranty deed coming from Lyman B. Pritchard and wife. (4) A bonded abstracter’s certificate to the effect that the transfers from Lyman B. Pritchard and wife to Joshna Rushton is properly made. With these requirements we will accept the title.” These requirements were fully complied with.

The opinion says that the fact that defendants did not procure the deed on the 20th of January justifies plaintiff in refusing to accept it. The facts, as shown by the abstract, are that the money was to be paid on the 20 th of January, and of course the deeds were to be delivered at that time. On the 12th of January the plaintiff by his attorney wrote to the defendant: “Mr. Rushton was in the office today and wanted me to ask you if you would be ready to close the deal upon his land there on the 23d of this month. This would let him have the advantage of the rates. If this is satisfactory -to you try and have our requirements ready so we can close the deal all up on that date and get back. I will probably come up for Mr. Rush-(on, as he wants me to look after the matter for him. Please let me know by return mail if this is satisfactory and you can have the requirements met so I can get back the same day.” The defendants at once ordered the, papers forwarded to the place where the contract was to be consummated, and they arrived there on the 24th— tlie deed from Pritchard, the release of the prior mortgage, and complete abstract, and all the papers that had been required by the plaintiff’s attorney in his letter of January 18, which is copied in the abstract. The contract did not provide that time is of the essence of the contract, and at the plaintiff’s request it was delayed three days, but the plaintiff refused to delay the other day, when he knew that the papers were in transit and had been delayed in the mail.

When this case was here before *(McNeny v. Campbell,*81 Neb. 754), the court stated at large the facts in the case. The present majority opinion adopts that statement of facts without change, explanation or addition, and yet *150upon the statement of facts the former opinion found that the case must be reversed. This seems to raise a direct conflict between the first opinion and the present opinion. In the last trial the court instructed the jury in the fifteenth instruction that “under the undisputed evidence in this case as to the title of the land * * * being in Lyman B. Pritchard, and the defendants Burke and Campbell” had only an option of purchase, “does not constitute ground for said Rushton or his assignee to rescind such contract and demand a return of the purchase money paid.” This is the law of the case as held by all of the authorities.

As to the other representation as to the value of the land, the court in the seventeenth instruction told the jury that, when a purchaser has opportunity to examine the property before he purchases, he cannot maintain an action against the parties on the ground that the vendor made false statements in regard to the value of the property. “Such purchaser is bound to rely on his own judgment in regard to such matters, and not on the statements of the vendor.” It is conceded, as stated in the majority opinion, that Rushton went to look at the land himself, and the majority opinion says that the case would not be reversed upon that ground alone, and further says that, “if Carpenter was interested in the agreement * * * as a party thereto, or had joined with them,” etc.: but the record shows, and the opinion states, that Carpenter was not a party to the agreement. The agreement was in writing, and it was between Burke and Campbell on the one side and plaintiff on the other.

According to the second paragraph of the syllabus, it is not enough that the verdict of the jury is clearly wrong. It must also be “manifestly” wrong in order to justify a reversal. This is adding something to any and all of the cases that we have heretofore decided.