
    J. H. Smith v. Welcome Smith.
    Filed April 10, 1896.
    No. 6361.
    1. Review: Conflicting Evidence, When the verdict is warranted by the proof on conflicting evidence it will not be set aside.
    2. -: -. Evidence considered, and held to have been sufficient to sustain the verdict.
    Error from the district court of Hamilton county. Tried below before Bates, J.
    
      E. J. Hamer, for plaintiff in error.
    
      M. Randall, contra.
    
   NORVAXi, J.

Tbis was an action by Welcome Smith against J. H. Smith to recover the sum of $50 and interest thereon alleged to be due from the latter to the former on account of a land deal. Upon a trial to a jury the plaintiff recovered a verdict, upon which judgment was subsequently rendered, and the defendant has brought the record here for review.

No legal proposition is presented for our consideration. The only question in the case is whether or not the verdict is sustained by the proofs. The uncontra-dicted evidence discloses the following facts: In 1886, John Yiotle commenced an action in the district court of Hamilton county against N. B. Kizer, Welcome Smith, the plaintiff herein, and several others to foreclose a mortgage upon certain real estate situate in the said county near the town of Phillips. Subsequently, Rebecca B. Hitchcock, through her attorney, J. H. Smith, the defendant herein, intervened and filed an answer and cross-petition in the cause setting up a first mortgage upon the same premises, and praying a foreclosure thereof. On the 2d day of May, 1887, a decree was entered foreclosing both mortgages, the mortgage of Hitchcock being declared the first lien upon the premises for the sum of $566.95, and Yiotle was awarded a second lien for the sum of $194.54, both sums to draw ten per cent interest from the date of the decree. An order of sale was subsequently issued, and on the 17th day of September, 1887, the mortgaged real estate was sold thereunder by the sheriff to said Welcome Smith for the sum of $800. No portion of the bid was paid down. On October 5, 1887, the defendant herein wrote a letter to plaintiff’s attorney, W. B.- Bacon, Esq., of Grand Island, but now located at Los Angeles, California, urging the payment by plaintiff of the amount of his bid at once. The next day plaintiff went to Aurora and saw defendant in regard to the matter. Court was then in session, and the latter urged strongly the payment of the money .so the sale might be confirmed. It was finally arranged that plaintiff should pay $400 to the defendant, as attorney for Hitchcock, and plaintiff would negotiate a loan to raise the remainder of the purchase money. The $400 was paid as agreed. At the same time some sort of an understanding was had between plaintiff and defendant to the effect that if the former could not raise the remainder of thé purchase price, the latter would do so, and the bid was to be assigned to him. Plaintiff attempted to make a loan upon the premises, but did not succeed in his efforts. On October 11, 1887, plaintiff and his attorney, Mr. Bacon, went to Aurora to see the defendant for the purpose of making a settlement of the matter. They saw the defendant, an understanding between the parties was reached whereby the plaintiff transferred his bid to the defendant, and his interest in the premises, and the latter on said day returned to the former the $400 already mentioned. The defendant also agreed conditionally to pay plaintiff $50, as a bonus. The sheriff thereafter made return of the order of sale, naming therein the defendant as purchaser. On the 8th day of May, 1888, the sale was approved and confirmed by tbe court. It is to recover the above sum of $50 that this action was brought, the plaintiff claiming that the condition or stipulation accompanying the agreement to pay said sum has been fulfilled, and therefore a cause of action has accrued in his favor for the money. There is no dispute but that the defendant agreed to pay plaintiff $50 on account of the transaction already mentioned. The controversy is one over the condition or conditions accompanying the promise to pay. The plaintiff insists that the sole condition imposed was that the sale should be confirmed by the court in the name of the defendant as purchaser. While the defendant contends that he was to pay the plaintiff $50, providing the sale was confirmed; that the defendant should make sale of the premises to one Alfred W. Mason, at the time a prospective purchaser, and that Mr. Bacon should obtain a loan for the latter on the land of $700 at eight per cent interest. No sale of the property to Mason was effected, nor was the loan to him made; so if the agreement was as defendant insists no recovery can be had in this case. There were but three persons present when the contract in question Avas made, — plaintiff, defendant, and Mr. Bacon, — and they gaAre testimony upon the trial.

The plaintiff testified positively that the sole condition attached to the agreement of the defendant to pay him $50 for his interest Avas that the sale should be confirmed in the name of the defendant.

Mr. Bacon testified, by deposition, to the agreement of the defendant to pay the plaintiff the sum stated, if certain contingencies should happen, the nature of which the witness did not remember.

• The defendant’s testimony sustains his own contention as to thé terms of the agreement, and his is, to some extent, corroborated by the letters which passed between himself and Mr. Bacon subsequent to the date of the settlement, and which are found in the bill of exceptions. The defendant also gaAre testimony to the effect that, on May 7,1888, prior to the confirmation of the sale, plaintiff came to see bim about tbe payment of tbe $50, when defendant informed bim that be did not intend to take tbe land, and urged plaintiff to raise tbe money, stating that if be did not do so defendant would bave tbe sale set aside; that plaintiff replied: “If you don’t bave tbe sale confirmed, and let me go borne, I tbink I can raise tbe money in two or three days. If I cannot raise tbe money I will send you word, and you can bave tbe sale confirmed in your name and you take it at tbe bid.” Tbe witness further testified that they both went to Mr. Valentine, tbe then sheriff, and plaintiff stated to tbe officer that if be sent tbe money tbe sale was to be confirmed in bis name, otherwise tbe defendant was to take the property at tbe bid and pay nothing more, and tbe sheriff was. to change bis return on tbe order of sale, to show that defendant was tbe purchaser; that on tbe next day tbe following letter was received from tbe plaintiff, which was introduced in evidence:

“Grand Island, May 8, 1888.

“Mr. J. H. Smith. — Dear Sir: You can bave tbe sale confirmed in your name, and I will see you when you come to Grand Island.

“Respectfully, Welcome Smith.”

Tbe defendant is corroborated by tbe testimony of P. E. Valentine, tbe officer who made tbe sale, as to the. conversation mentioned above as having taken place May 8, while tbe plaintiff in bis testimony denies that any such conversation occurred.

Tbe testimony adduced is hopelessly irreconcilable,, not only as to the terms of tbe contract entered into on October 11, but whether tbe same was subsequently modified or rescinded by tbe parties. Tbe jury beard tbe witnesses, weighed their evidence, and decided all conflict therein in favor of the plaintiff, and tbe trial' court approved tbe same by refusing a new trial. Their finding cannot be disturbed by us, unless shown to be clearly and manifestly wrong, or without sufficient evidence to support it. We bave thrice read tbe testimony and find that that introduced by the plaintiff is not only reasonable and consistent in all its parts, but if accepted as true, and disregarding the proofs on the other side, it makes out the cause of action alleged. Under the evidence the jury could have returned a verdict for the defendant, but as there is not a total want of evidence upon any essential point to sustain the verdict, it must stand. This is in accordance with the well established rule in this court. The judgment is

Affirmed.  