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 [143]*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plaintiff, as a party thereto, or had joined with them in the perpetration of any fraud upon Rushton, and Rushton had rescinded the contract, either for fraud or the failure of Burke and Campbell to comply with its terms, and plaintiff was entitled for either reason to recover back the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 [144]*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-[145]*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 [146]*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.
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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 [143]*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 [144]*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-[145]*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 [146]*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[147]*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 [148]*148that the judgment should be molested. It is therefore
Affirmed.
Fawcett, J., not sitting.