Hammond v. Jewett

• Citation: 22 Neb. 363,35 N.W. 188
• Parties: HAMMOND v. JEWETT AND OTHERS.
• Decision Date: 10 November 1887
• Court: Supreme Court of Nebraska

22 Neb. 363

35 N.W. 188

HAMMOND

v.JEWETT AND OTHERS.

Supreme Court of Nebraska.

November 10, 1887.

Syllabus by the Court.

The evidence examined, and held not sufficient to sustain the verdict of the trial jury.

When issue is presented by the pleadings, the verdict of a jury thereon cannot be sustained unless supported by some evidence.

Error from district court, Clay county; MORRIS, Judge.Dilworth & Smith and W. P. Shockey, for plaintiff.

Leslie G. Hurd, for defendant.

REESE, J.

This action was commenced before a justice of the peace of Clay county. Such proceedings were had as resulted in a removal of the cause to the district court, where new pleadings were filed, and a trial had, resulting in a judgment in favor of defendant in error, and against plaintiff in error. The allegations in the petition are that plaintiff in error was a local dealer in stoves and hardware in the town of Harvard, and was agent of defendant in error for the sale of their stoves. That through plaintiff in error, as such agent, defendant in error sold a stove to one Goehring for the sum of $70; that the sum of $50 of the purchase price of the stove had been paid to the plaintiff in error, but that he had failed to pay the same over to defendants in error, and that of the amount thus collected there were $54.48 due to defendants in error. Plaintiff in error, by his answer substantially admits the sale of the stove through him as agent, but alleges that the same was paid for to him by Goehring, and that on the thirteenth of October, 1878, he paid to defendants in error the whole amount due and owing to them growing out of such sale. The reply was a general denial.

The only question involved in the case is one of payment; for plaintiff in error and Goehring, in their testimony, both state unequivocally that the stove was purchased through plaintiff in error as alleged, and paid for by Goehring. We have examined the record and the testimony carefully, and are forced to the conclusion that the verdict is contrary, not only to the weight of evidence, but to the whole thereof.

W. R. Webster, the traveling agent of defendants in error, by whom the stove was sold, testified to its sale and shipment, and states unequivocally that he has no knowledge as to whether the debt had been paid or not; that he is not the book-keeper of defendants in error, nor is he the cashier, and does not have access to the books of the defendants in error, and only depended upon the statements given him by them for collection. When asked if the debt had ever been paid, his answer was: “It has not, to my knowledge; of course, I have not full knowledge of these things.” It will not serve any good purpose to give a critical examination of his testimony; it is fair to say that, throughout the whole of his examination, there is no proof whatever that the debt has not been paid.

It is quite probable that, by the issues, the burden of proof did not rest upon the defendants in error to establish the negative of this proposition by a preponderance of testimony; but it appears that they assumed...