force. Cloe v. Rogers, 31 Okl, 255, 121 Pac. [necessarily operated to withdraw the land 201, 38 L. R. A. (N. S.) 366, and cases cited. from the market, the contract terminates on This is the same theory upon which this such sale without notice to the agent. We court must necessarily have decided the case cannot agree to this argument. The law reof Maddox v. Harding, supra. And in the quires that the parties act toward each other Hallstead Case, the second section of the in good faith. 9 C. J. 520, § 22; Maddox v. syllabus is as follows: Harding, supra. And good faith would re "Where an agent is vested with a mere naked quire notice. The landowner could not secretauthority, not coupled with an interest, his ly sell his land, and thereby terminate the principal may revoke that authority before per-agent's right to effect a sale, and, by remainformance; but, if the agent has rendered serving silent, permit the agent to expend further ices and incurred expense in the course of his employment before his authority was canceled, the principal will be liable therefor, unless it is otherwise provided by the terms of their agreement." This language could not have been used with any idea in mind other than that the agreement to compensate for services rendered and expense incurred up to the time of revocation still remained in force after the power to close a sale had ceased; and in case of a revocation of the agent's power to sell, either by the owner effecting a sale himself or by exercising his right to terminate the agency contract, the revocation does not be come effective upon the agent's right to such compensation as is provided in the contract, unless and until the owner gives notice thereof to the agent. 99 C. J. 520, § 22, and cases cited. The Nebraska cases cited by defendant do not sustain his contention. time and effort in attempting to make a sale, and escape liability under his contract. To approve such a doctrine would be in effect to say that one man could escape liability by his own neglect or craft, and another be deprived of his rights without fault on his part. As far as the agent's right to compensation under the contract is concerned, the land could not be "withdrawn from the market," under the terms of the contract, until the agent had notice or knowledge of such withdrawal. Some distinction is attempted to be drawn between compensation under and by virtue of the contract and damages for the breach of it. The distinction is academic and unsubstantial. It makes no difference to either party whether plaintiff is considered to have earned the compensation provided in the con- . tract by performing it, or has been damaged by the loss of the stipulated commission by the owner's preventing performance. result would be the same in either view. The In the case at bar, the plaintiff agent, within the time specified in the contract of agency, procured a purchaser for the defend- In this case, the defendant's answer set up ant's land upon terms specified in the con- that he did not understand the contract when tract, and before he had received notice or he signed it, and that certain representations had knowledge of the sale by the owner; and, were made to him at the time, and, as this although the agent's power to sell necessarily court said in the Hallstead Case, this opinion was revoked by the owner's sale of the land should not be construed to the prejudice of on January 9, the agent had performed his any lawful defense the defendant may interpart of the contract before he knew or had no-pose to plaintiff's claim. It is true the record tice of the sale, and on the facts set forth shows that defendant rested his case, and it is entitled to the commission stipulated in might seem that he acquiesced in the court's the contract. announcement of its intent to make the or [3] We hold that the agency contract re-der; but, as defendant excepted to the ruling, mained in force as far as it related to his com- it leaves the record in such confusion that we pensation up to the time on January 16 when think it best to remand the case for a new plaintiff's employee, Bockes, was informed trial. that the land had been sold to another. It follows that the trial court erred in directing a verdict in plaintiff's favor for only $56, which, according to the testimony, was the reasonable charge for some of the automobile trips the plaintiff made in an effort to sell the land. Defendant finally argues that, as the agency contract did not provide that he give notice to plaintiff of a withdrawal of the land from the market, and as the sale by the owner For the error of the district court in directing a verdict in plaintiff's favor for $56 only, when it should have been for $800 on plaintiff's case, we recommend that the judgment of the district court be reversed, and this cause remanded for a new trial. PER CURIAM. For the reasons stated in the foregoing opinion, the judgment of the district court is reversed, and this case remanded for a new trial. (180 N.W.) DINSLAGE v. STRATMAN. (No. 20704.) (Supreme Court of Nebraska. Nov. 10, 1920.) (Syllabus by the Court.) 1. Gifts 18(2)-Direction to debtor to pay debt to donee is a sufficient delivery. Where the proof is clear of an intention to make an absolute gift inter vivos of a chose in action, arising from a debt not evidenced by a promissory note or other document, an unqualified direction by the donor to the debtor to pay the debt to the donee, instead of to the creditor, is a sufficient delivery of the gift; it being the only delivery of which the chose is susceptible. 2. Gifts 34-Wills 88 (3)-Postponement of donee's enjoyment until donor's death does not render gift invalid. The mere fact that actual enjoyment of the gift by the donee is, by the declaration of the gift, postponed until the death of the donor, does not render the gift either conditional, or testamentary, or in any way invalid. 3. Gifts 34-Stipulation postponing actual enjoyment of chose in action to donor's death is not a condition. In such a case the stipulation that actual enjoyment of the gift is to be deferred until the donor's death only marks the time when enjoyment begins, and is not a condition, since the donor's death is inevitable. 4. Gifts 50-Evidence in administrator's action for money due intestate held to sustain defense of payment to his donee. Evidence examined, and held to require a reversal of the judgment of the district court. motion for a new trial being overruled, he appeals. This is the second hearing of this case in this court. Upon the former hearing, the judgment of the district court was reversed, and the action dismissed; a memorandum opinion being written by Mr. Commissioner Dorsey. A rehearing was granted, Commissioner Dorsey himself suggesting it, out of abundant caution, and on account of the comparative novelty of the questions involved in this jurisdiction. Appellee filed a brief on the rehearing, and the cause has been reargued and resubmitted. The facts are not in dispute, and are as follows: Thresa Stratman lived on a farm in Cuming county with her son, Frank Stratman, the defendant, from 1909 until her death on October 6, 1915. She had, living in the same neighborhood, another son by a former marriage, John Dinslage, the father of Tracey Dinslage, who was 8 years of age at the time of her grandmother's death. She owned a mortgage of $5,000 and was entitled to the $1,400 due her from the defendant, making a total of $6,400. The indebtedness of the defendant to his mother was not evidenced by a promissory note or other writing. The defendant had borrowed the money from his mother at various times, until the loans aggregated $1,400, and he paid the interest to his mother. When Tracey Dinslage was 3 years old, she went to live with her grandmother at the home of the defendant, Frank Stratman. The evidence clearly shows without dispute that, shortly after Tracey went to live with her grandmother, her father wanted her to come Appeal from District Court, Cuming Coun- home, and often said so; but the grandmother ty; Welch, Judge. Action by Henry Dinslage, as administrator of Thresa Stratman, deceased, against Frank Stratman. Judgment for plaintiff on a directed verdict, motion for new trial denied, and defendant appeals. Reversed, and action dismissed. desired the little girl to remain with her, and said to John Dinslage, the father, that she wanted Tracey to stay with her until Tracey reached 18 years of age, or the grandmother died, and would give her $1,000. The fact of this desire of the grandmother to have Tracey stay with her, and the certainty that, if she did stay until she reached 18 years of age, or Brome & Ramsey, of Omaha, and F. D. the grandmother died, she was to have $1,000, Hunker, of West Point, for appellant. is substantiated by the testimony of several W. J. Donahue, of Albion, and Hugo M. witnesses as to conversations to that effect beNicholson, of West Point, for appellee. tween them and Thresa Stratman. In June, 1915, Thresa Stratman told the defendant, in the presence of John Dinslage, that he should pay $1,000 of the sum he owed her to Tracey. John Dinslage testified to this conversation as follows: CAIN, C. This action was brought by Henry Dinslage, as administrator of the estate of Thresa Stratman, to recover the sum of $1,400 from the defendant, Frank Stratman, for money loaned him by Thresa Stratman in her lifetime. The defense interposed was that, while the defendant had been indebted to Thresa Stratman in the amount named, he had paid it, by her direction, to her granddaughter, Tracey Dinslage. At the conclusion of the evidence the trial court diAnd on cross-examination he testified: rected the jury to render a verdict for the "Well, she told me, if that girl reached that plaintiff in the sum of $1,035.75. Defendant's age and stay with her, she would give her $1, "She says that Frank Stratman should pay the little girl $1,000; that she [Thresa] would pay her $1,000 if she be of age, and, if she died before that, Frank Stratman should pay her $1,000 at her death." For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 000, and if she died that Frank Stratman should I was present at either of these conversations. pay the girl the money." The $400 was to be paid to the priest of Aloys for saying masses for the repose of the souls of Thresa Stratman and her husband, who had died some years before. Thus it will be seen that in June, 1915, Thresa Stratman did everything in her power to make final disposition of the chose in action arising from her loans of money to her son, the defendant. She told John Dinslage that his daughter, Tracey, was to get the $1,000, and she directed the defendant to pay that sum to Tracey at the time of her death, and said that, if she was alive when Tracey reached the age of 18 years, she herself would then pay it to Tracey. This intent of the grandmother was communicated to several persons, extending over a period of several years, and as late as 2 months before her death. The record compels the conviction that she regarded this arrangement as settled, and that she intended to set apart, and did set apart, the money which Frank Stratman owed her as a fund to carry out the arrangement. This conclusion is corroborated by the fact that on July 9, 1915, when C. W. Ackerman, of West Point, assisted her in disposing of the $5,000 mortgage, she said to him that she "didn't have any more; she had given it all away." "The grandmother died on October 6, 1915, and on February 17, 1916, the defendant, Frank Stratman, paid the $1,000 to John Dinslage "for Tracey," and had paid the priest of Aloys about $150 of the $400 at the time of the trial of this case. By some arrangement, not clear in the record, the gift of $400 was allowed to stand, and so is eliminated from the case, except as to such significance as it might have as proof. But upon this evidence the administrator the donor retained the right to use it, if she contends that the gift was not absolute, as needed it. We think it a sufficient answer to this contention to point out that there is no ment at the time of the donation, or in the evidence that the donor made such a stateand that, if the declaration and direction of presence of John Dinslage or the defendant, the donor to the defendant in June, 1915, under all the circumstances, constituted a valid her to strangers at other times could not afgift inter vivos, other statements made by fect its validity. Parenthetically, it may be observed that, in Brandstetter's testimony in chief, when he detailed the conversations he had with Thresa Stratman, professing to give them in full, he said nothing indicating that she intended to use, or claimed the right to that regard on cross-examination was merely use, any of the money, and his testimony in an affirmative answer to a question of counsel, incorporating the statement quoted above. We think that, if the gift were validly executed in June, 1915, when, in the presence of John Dinslage and of the defendant, Thresa Stratman directed the defendant to pay the $1,000 to Tracey, then any subsequent declaration by her to a stranger would not affect its validity. that the evidence, at most, shows only an inThe administrator appellee next insists tention of the grandmother to make a gift to her granddaughter, and that the attempted gift is a nullity for lack of delivery. We have no doubt that delivery, either actual or constructive, is an indispensable essential to the validity of the gift, and the question for solution is whether the evidence shows such a delivery, and that point will now be considered. The rule is thus laid down in 20 Cyc. 1196 et seq:: "Delivery, to be effectual, must be according to the nature and character of the thing given, and hence may be actual or constructive, however, be a parting by the donor with all according to the circumstances. There must, present and future legal power and dominion over the property." At page 1198 appears the following: [1-3] The defendant contends that the $1,000 was an executed gift inter vivos, and therefore irrevocable; that transfer of the title to the money to the defendant in trust for Tracy Dinslage was complete in the lifetime of the donor, although actual enjoyment of the fund by the donee was postponed; and that his payment of the $1,000 to John Dinslage "for Tracey" was a payment of the debt to that extent. On the other hand, the administrator insists that, at most, the evidence shows only an intent to make a gift, which was never executed by delivery, and that it was not absolute, but conditional, and the donor retained dominion over it, and that whatever was said and done was testamentary in character, and, lacking the formalities prescribed for the execution of a will, was void. The administrator bases his contention that Thresa Stratman retained dominion over the fund upon the testimony of Fred Brandstet"The trend of modern decisions is toward ter, on cross-examination, where he testified to conversations he had with her, in which, ing an actual, manual delivery of the property a modification of the early English rule requirreferring to this fund, she said that, "if she in all cases, to constitute a valid gift inter needed it, it would be spent in her lifetime." vivos, and the substitution therefor of a symNeither John Dinslage nor Frank Stratman bolic or constructive delivery, where the cir "The rule is well settled, however, that delivery need not be made to the donee personally, but may be made to a third person as agent or trustee, for the use of the donee, and under such circumstances as indicate that the donor relinquishes all right to the possession or control of the property, and intends to vest a present title in the donee." At page 1199: (180 N.W.) cumstances of the case require it. Now, ac-, she would come into the enjoyment of it. cording to the better doctrine, an unequivocal That postponement of the enjoyment of a declaration of gift, accompanied by a delivery gift until a future time does not affect its of the only means by which possession of the validity is well supported by the authorities. thing given can be obtained, is sufficient." In Foster v. Murphy, 76 Neb. 576, 107 N. W. 843, this court held: "The indorsement and delivery of a certificate of deposit, with the intention of making a gift of the deposit thereby represented to the party to whom the certificate is thus delivered, operates as a gift of the fund itself." In the well-considered case of Tucker v. said: "If the gift is absolute, the mere postponement of the enjoyment until the death of the donor is not material, and will not defeat it" -citing many cases, among which are Schollmier v. Schoendelen, 78 Iowa, 426, 43 N. W. 282, 16 Am. St. Rep. 455; Hogan v. Sullivan, 114 Iowa, 456, 87 N. W. 447; Scrivens v. North Easton Savings Bank, 166 Mass. 255, 44 N. E. 251; McNally v. McAndrew, 98 Wis. 62, 73 N. W. 315; Martin v. Martin, 170 Ill. 18, 48 N. E. 694; Davis v. Ney, 125 Mass. 590, 28 Am. Rep. 272. The statement of the rule in 20 Cyc. 1199, that "an unequivocal declaration of gift, accompanied by a delivery of the only means by which possession of the thing given can be obtained, is sufficient," is supported by the following cases; Ebel v. Piehl, 134 Mich. 64, 95 N. W. 1004; Green v. Langdon, 28 Mich. 221; Gammon Theological Seminary To the same effect is the case of Innes v. v. Robbins, 128 Ind. 85, 27 N. E. 341, 12 L. R. Potter, 130 Minn. 320, 153 N. W. 604, 3 A. A. 506; Martin v. McCullough, 136 Ind. 331, L. R. 896, and Bostwick v. Mahaffy, 48 Mich. 34 N. E. 819; Smith v. Youngblood, 68 Ark. 342, 12 N. W. 192. In Brown v. Westerfield, 255, 58 S. W. 42; McGillicuddy v. Cook, 5 47 Neb. 399, 66 N. W. 439, 53 Am. St. Rep. Blackf. (Ind.) 179; Hawn v. Stoler, 22 Pa. 532, and in Dunlap v. Marnell, 95 Neb. 535, Super. Ct. 307; Pirie v. Le Saulnier, 161 145 N. W. 1017, and Roepke v. Nutzmann, Wis. 503, 154 N. W. 993; Hagerman v. Wi- 95 Neb. 589, 146 N. W. 936, it was held that gent, 108 Mich. 192, 65 N. W. 756. In Ebel where deeds conveying real estate are signv. Piehl, supra, it was held that an oraled and acknowledged by the grantor, and by promise by a son to his father, on receiving property from the father, that on the latter's death $400 should be paid to a daughter, created a chose in action in favor of the father, which, on being assigned to the daughter, could be enforced by her, and also held that the transfer of the chose in action to the daughter did not constitute a gift in futuro, but a gift in præsenti of a promise to pay in futuro. In the instant case there was no promissory note or other documentary evidence of the $1,400 debt, and consequently there was nothing tangible that could be delivered by Thresa Stratman to any one. The whole thing rested in parol. The only thing that could be done by her was to direct her debtor to pay $1,000 of the money to Tracey, instead of to herself. It is conclusively established by the evidence that she gave this direction. Hence she did everything in June, 1915, that was in her power to divest herself of the title to the chose in action, and invest Tracey with it. We think that there was a sufficient delivery. To hold otherwise would be to say that there can be no delivery of a chose in action, unless it is accompanied by delivery of written evidence of it, and this would be absurd. him left with a third person to be delivered to the grantee upon the death of the grantor, the title vests in the grantee upon such death. The postponement of the actual delivery of the deed does not affect its validity. In our opinion the fact that the $1,000 was not to be paid to the donee until after the death of the donor, neither made the gift conditional, nor did the postponement affect its validity or render it testamentary in character. [4] In this case, the father of Tracey desired that she come home and live with him, but the grandmother wanted the little girl to live with her until her death, and it was understood by all that Tracey was entitled to the fund of $1,000 to be enjoyed by her after her grandmother's death. Tracey did stay with her grandmother continuously until her death, and it is inconceivable to us that she had any other notion than that the gift was absolute, and that her direction to the defendant to pay that sum to Tracey after her death settled the matter beyond recall. It seems to us that the evidence without dispute conclusively establishes that such was the grandmother's intent, and that she did everything in her power to effectuate it. We therefore hold that there was an absolute completed gift of the fund to Tracey at the time when Thresa Stratman directed defendant to pay the money to Tracey upon her death, and that there was a sufficient constructive delivery. The administrator also contends that the gift was not absolute, but conditional only upon the death of the donor, and for that reason is invalid. As the death of the donor was inevitable at some time, we do not consider it a condition to the vesting of the title We recommend that the former decision in Tracey, but only as marking the time when be adhered to, and that the judgment of the district court be reversed, and the action reads: "All offices created by this Constitudismissed, PER CURIAM. For the reasons stated in the foregoing opinion, the judgment of the district court is reversed, and the action dismissed, and this opinion is adopted by and made the opinion of the court, Reversed and dismissed. STATE ex rel. OLESON v. MINOR, Lancaster (No. 21764.) tion shall become vacant by the death of the incumbent, by removal from the state, resignation, conviction of a felony, impeachment, or becoming of unsound mind. And the Legislature shall provide by general law for the filling of such vacancy, when no provision is made for that purpose in this Constitution." 4. Judges 8-Where no time to nominate candidates to fill vacancies In Supreme Court, Governor's appointee holds until successor regularly elected. When a vacancy is created in the Supreme Court by death, resignation, or otherwise, so recently before the primary election that sufficient time does not remain to nominate candidates to be voted for at the general election to (Supreme Court of Nebraska. Nov. 10, 1920.) fill the vacancy, the appointee named by the (Syllabus by the Court.) 1. Mandamus 74(1)-Does not lie to place blank spaces on official nonpartisan judiciary ballot at election to fill vacancy in Supreme Court. Mandamus will not lie to compel a ministerial officer to place upon the official nonpartisan judiciary ballot blank spaces, appropriately placed in the proper office division, so that the electors of the state may at the general November election write in names, and vote for persons whose names are so written in, to fill a vacancy in the Supreme Court, when such vacancy occurred at a period so recently before the primary election that there was not sufficient time to nominate candidates for such office. Rev. St. 1913, §§ 2209, 2211, as amended, Laws 1917, c. 37, as amended, Laws 1919, cc. 88, 89; State v. Penrod, 102 Neb. 734, 169 N. W. 266. 2. Elections 147-Regularly nominated candidates to fill vacancy in Supreme Court held not candidates for subsequent vacancy. Governor to fill the vacancy is entitled to hold the office until a successor is regularly nominated and elected pursuant to the provisions of the nonpartisan judiciary law. 5. Elections 120-Court cannot fill vacancies in Supreme Court by orders relating to nomination of candidate where Legislature has provided method therefor. The Legislature having provided that candidates for the office of judge of the Supreme Court shall have their petitions for nomination filed at least 30 days prior to the primary election and having made no provision for the nomination of candidates for that office after the expiration of such 30-day period, the court is without authority to supply that which the Rev. Legislature did not see fit to supply. St. 1913, § 2209, as amended, Laws 1919, c. 88. Original proceedings in mandamus by the State, on the relation of Andrew R. Oleson against Walter L. Minor, as County Clerk of Lancaster County. Writ denied. W. T. Thompson and E. B. Perry, both of Lincoln, for plaintiff. C. E. Matson, Co. Atty., H. R. Ankeny, Deputy Co. Atty., T. J. Doyle, and C. C. Flansburg, all of Lincoln, for respondent. When a vacancy occurs in the Supreme Court and two persons are thereafter regularly nominated at the regular election under the nonpartisan judiciary law as candidates for "judge of Supreme Court," and subsequently another vacancy occurs in such court but too late to have the names of persons filed for DEAN, J. Relator made application to nomination at the primary as candidates for this court for a writ of mandamus to resuch second vacancy, the two persons so nom-quire respondent to place on the official inated are candidates for the first vacancy only. nonpartisan judicial ballot blank spaces, 3. Constitutional law 31 - Constitutional appropriately placed in the proper office diviprovision relating to vacancies in Supreme sion, so that the electors of the state may, at the general election to be holden November Court held not self-executing. 2, 1920, write in names and vote for persons to fill the vacancy in the supreme court caused by the death, on April 18, 1920, of the late Judge Albert J. Cornish. Section 21, art. 6, of the Constitution, reads: "In case the office of any judge of the Supreme Court, or of any district court, shall become vacant before the expiration of the regular term for which he was elected, the vacancy shall be filled by appointment by the Governor, until a successor shall be elected and qualified, and such a successor shall be elected for the unexpired term at the first general election that occurs more than thirty days after the vacancy shall have happened." Held, that the foregoing section is not selfexecuting, but must be construed together with section 20, art. 3, of the Constitution, which [1, 2] In 1919 a vacancy was created by the death of Judge Samuel H. Sedgwick who departed this life December 25, 1919, and for reasons hereinafter appearing the vacancy so created must be noticed in deciding the Both Judge Sedgwick and present case. Judge Cornish were elected to the Supreme Court in November, 1916, for the six-year term beginning January, 1917, and ending For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |