
    Herman D. Einsphar et al., as Trustees of the First German Lutheran Zion Church, of Adams county, appellants, v. Frederick Wagner, appellee.
    Pleading: petition. The petition of the plaintiffs, the substance of which is set out in the opinion, held, to state facts sufficient to constitute a cause of action on the part of the plaintiffs, against the defendants.
    Appeal from Adams county. Tried below before Gaslin, J.
    
      C. IT. Tanner, lor appellants.
    
      Laird do Smith, for appellee.
   Cobb, J.

The petition alleges that the plaintiff is a duly organized corporation under the laws of the state of Nebraska. That at a meeting of the members of said corporation, on the 11th day of February, 1878, certain officers of said ■ corporation were duly elected, among the rest the defendant was elected treasurer and trustee for two years. That at said meeting the trustees were instructed and empowered by said corporation to purchase forty1acres of school land on twenty years time, at 6 per cent, interest, said land to be the common property of said corporation, and to be held for the use and benefit of said corporation, for church and cemetery purposes. That at a subsequent meeting of said corporation, held on the 20th day of said month of February, it was unanimously resolved that-the corporation purchase the south-west quarter of the north-west quarter of section 36, township 7 north, of range 12 west. That the trustees of said corporation, in accordance with the instructions given by the said plaintiff at the said meeting,- did-go to the county treasurer’s-office of Adams county, Nebraska, for the purpose of purchasing for the said plaintiff the said land. That the-defendant was then one of the trustees, and was then and there present for the purpose aforesaid. That said trustees ■ were then and there informed by, the county treasurer of. Adams county that the contract for the purchase of said land from the state could not be made with them, as a board. of trustees, for the benefit of said plaintiff corporation,. neither could said contract be made with one of them, as ■ trustee of said corporation, but that the contract with the-state could only be made with an individual, and in an individual capacity. That thereupon the plaintiff appointed, authorized, and empowered the defendant, the-then treasurer and trustee of the plaintiff, to act for and in behalf of the plaintiff, and to make an individual contract with the state of Nebraska for the purchase of said land for the plaintiff upon the following conditions, to-wit: That at such time as the plaintiff should pay for' said land in full, and release said Frederick Wagner from all personal liability on his contract with the state for the° purchase of said lahd, then and in that event the said defendant was to present his contract for the purchase of' said land to the proper authorities, procure a deed thereon to said land, and convey the same to the plaintiff, as - will more fully appear from a copy of said contract, which is as follows: “ It being impossible under the law for the whole board of trustees of the Evangelical Lutheran Zion Church N. A. C., to purchase the forty acres of land embraced in the * * * as the property of the congregation, I, F. Wagner, trustee, have bought the same in my name for the congregation, who approve of the transaction. And furthermore, because of my name being used only in the contract and nothing appearing relating to congregation property as such, 1, E. Wagner, promise and ■herewith bind myself, successors, and guardians, to have issued a deed to the First Established Evang. Luth. Zion Congregation N. A. C., of Adams county, Nebraska, as" soon as the above described forty acres of land shall havé been paid for in full by same, and the contract be fulfilled.

Done in the year of the Lord 1879, on the 14th day of April, in presence of the congregation,

(Signed.) Frederick Wagner,

Witness; Augusta Wagner.

Herman Einsri-iar,

Joachim Huckfeldt.

Plaintiff further says, that on the 7th day of January, 1878, Frederick Wagner, said defendant, was the treasurer of this plaintiff, the said corporation, and as such treasurer did make a payment on said land for said plaintiff, and with money belonging to this plaintiff, the said corporation, twenty-eight dollars, as one-tenth of the principal of said land, and fourteen and 44-100 dollars advance interest on said land, to-wit: * * * * That said defendant, as treasurer of this plaintiff, did on the 9th day of January, 1879, pay out of the funds and moneys belonging to said plaintiff the sum of fifteen and 12-100 dollars as advance interest on said land. That on the 7th day of January, 1880, the said Frederick Wagner, as the treasurer of the plaintiff, did pay out of the funds and moneys belonging to this plaintiff the sum of fifty-two dollars as principal on said land, and the further sum of twelve dollars advance interest on the same. Plaintiff further says, that on the first day of June, A, D. 1880, there was due to the state of Nebraska the sum of two hundred dollars, which sum of money has been paid .by this plaintiff, the said corporation, to the county treasurer of Adams comity, and that said payment has been made by said plaintiff out of money and funds belonging to said plaintiff, the said corporation. That said land is paid for in full, and there is nothing due to the state of' Nebraska thereon, and that the plaintiff, the said corporation, has paid for said land all the principal and interest with money belonging to the plaintiff, the said corporation. That the plaintiff, the said corporation, delivered to-the said defendant, the said Frederick Wagner, the receipt of the county treasurer of Adams county, Nebraska, for the final payment for said land by the plaintiff, and also the contract of said Frederick Wagner, the said defendant, made and entered into by said defendant with this plaintiff, and demanded of him, the said Frederick Wagner, defendant, to procure title to said land from the state of Nebraska, and to convey the same to this plaintiff, the said corporation, in accordance with the terms and agreements of the said contract made with this plaintiff. That said defendant refused and still refuses to accept said receipt of said county treasurer, and refused and still refuses to procure title to said land, and refused and still refuses to convey the said land to this plaintiff, the said corporation, either by assigning his contract for the purchase of said lands to this plaintiff, or in accordance with the terms of his agreement with this plaintiff, the said corporation. That the said defendant refused and still refuses to act in any manner whatever for the benefit of this plaintiff, the said corporation. Plaintiff further says, that the said defendant, Frederick Wagner, has ho interest in-said land other than that of a member of the corporation, the said plaintiff, that said contract made on the 17th day of January, 1878, for the purchase of said land from the state of Nebraska by the said defendant, was not made in behalf of said defendant Frederick Wagner, as it purports to be, but was made by the said defendant, Frederick Wagner, in behalf and for the use and benefit- • of the plaintiff, the said corporation, and as the agent ■.and trustee of the said plaintiff. That all of the acts of ■the said defendant in relation to the said land have been . done b.y virtue of his office as treasurer and trustee of the plaintiff, the said corporation, and under the control and management of the plaintiff, the said corporation, and by virtue of an authority delegated to him by the plaintiff, and that in no other manner whatever has the- said defendant exercised any control or management over said land. Plaintiff further says, that the plaintiff, said corporation, now has full possession and control of said land, . and has had full possession and control thereof ever since the defendant, Frederick Wagner, contracted for the pur-' . chase of the same from the state of Nebraska. That the .■said defendant has not how, neither has he ever had, possession or control of said land since his contract for the purchase of the same, but that the same has at all times . since been held and controlled by the plaintiff, the said . corporation. Plaintiff further says, that the said defend- . ant has failed to comply and refuses to comply with the terms of 'the contract and agreement entered into by him • on the 14th day of April, 1879, with this plaintiff, the said . corporation, and for its use and benefit. That the plain- ■ tiff, the said corporation, has fully complied with the conditions of the said contract and .agreement on its part. Wherefore plaintiff prays for the following judgment and relief: That a decree be entered directing said defendant, Frederick Wagner, within ten days after the rendition of the decree to present to the county treasurer of Adams . county, Nebraska, his original contract with the state of Nebraska, for the purchase of said-land, and demand a . deed for said land, conveying the same to this plaintiff. In case the said defendant, Frederick Wagner, shall neglect and refuse to present said contract to said county ■ treasurer, and procure a deed conveying said land to the plaintiff, then and in that event, the sheriff of Adams county be directed to present a copy of this decree to tbe county treasurer of Adams county, Nebraska, and upon a deed being properly executed conveying said land to this plaintiff, the contract executed by the said defendant, Frederick Wagner, with the state of Nebraska, on the 17th day of January, 1878, for the purchase of said land, shall be cancelled, and such conveyance to said plaintiff shall be taken as a full and complete performance on the part of the state of Nebraska, party to said contract, and that the plaintiff have such other and further relief as equity and justice may require, together with costs, etc.

The above is the substance of the petition, leaving out the proceedings of seven meetings of the corporation, and some other matters, which probably would have been stricken out as redundant matter had a motion to that effect been made in the district court. The defendant filed a general demurrer, which was sustained by the court. The plaintiffs, electing to stand by their petition, the same was dismissed and a judgment for costs rendered against the plaintiffs, who bring the cause to this court by appeal.

There being no brief on either side, we are quite at a loss for grounds on which the district court acted in sustaining the demurrer. From a perusal of the petition, we fail to see in what respect it fails to state a cause of action, on the part of the plaintiffs, against the defendant; but, on the contrary, it seems quite clear to us that, upon proof sustaining the case as stated in the petition, the plaintiffs will be entitled to the relief prayed for. The decree of the district court is therefore reversed, and the cause reinstated, and remanded to the district court for further proceedings in accordance with law.

Decree Accordingly.  