Ashland Land & Live-Stock Co. v. May
| Decision Date | 05 May 1897 |
| Citation | 51 Neb. 474,71 N.W. 67 |
| Court | Nebraska Supreme Court |
| Parties | ASHLAND LAND & LIVE-STOCK CO. v. MAY. |
OPINION TEXT STARTS HERE
Syllabus by the Court.
1. A verdict will not be disturbed merely because it is against the preponderance of the evidence.
2. The question of payment is a matter of defense, which, to be available, the defendant is required to set up in the answer and establish on the trial.
3. Held, the fourth instruction stated the correct rule as to the burden of proof, and was applicable to the issues made by the pleadings.
4. Remarks of counsel for plaintiff during the examination of a witness for an unsuccessful defendant, over proper objections, that such witness had been “fixed” by defendant's counsel, and that said counsel had to depend upon “fixing witnesses,” in the absence of evidence of such fact, are grounds for setting aside the verdict.
Error to district court, Saunders county; Wheeler, Judge.
Action of Alfred May against Ashland Land & Live-Stock Company. Judgment for plaintiff. Defendant brings error. Reversed.Simpson & Sornborger, for plaintiff in error.
O. C. Tarpenning, for defendant in error.
Alfred May, plaintiff below, brought this action to recover an alleged balance claimed to be due him from the defendant for work and labor. The petition avers, substantially, that plaintiff, in 1891, entered into a contract with the defendant, by the terms of which May was to act as defendant's manager and veterinary, at the agreed price of $50 per month; that in pursuance of said contract he was in defendant's employ in the years of 1891 and 1892; and that defendant is indebted to him therefor, over and above all credits, in the sum of $424.20, for which, with interest, he prays a judgment. The answer consisted of a general denial, and also a counterclaim for $422, composed of the following items:
+-----------------------------------------------------------------------------+
¦To wintering 21 head of horses from November 22, 1890, to May 1, '91, at¦$287¦
¦the agreed price of $2.50 per head per month ¦75 ¦
+------------------------------------------------------------------------+----¦
¦To wintering mare from March 12 to May 1, '92 ¦4 25¦
+------------------------------------------------------------------------+----¦
¦To pasturing 22 head of horses from May 1 to October 1, 1892, at agreed ¦66 ¦
¦price of 60 cents per head per month ¦00 ¦
+------------------------------------------------------------------------+----¦
¦To feeding and caring for 22 head of horses from October 1, '91, to ¦29 ¦
¦November 12, '91, at agreed price of $1.50 per head, each, per month ¦00 ¦
+------------------------------------------------------------------------+----¦
¦To extra corn fed during winter ¦25 ¦
¦ ¦00 ¦
+------------------------------------------------------------------------+----¦
¦Stallion kept in box stall, attended to, and fed from November 22, 1890,¦66 ¦
¦to March 30, '92 ¦00 ¦
+------------------------------------------------------------------------+----¦
¦Horse with fistula, kept in barn, different times ¦22 ¦
¦ ¦00 ¦
+------------------------------------------------------------------------+----¦
¦ ¦$500¦
¦ ¦00 ¦
+------------------------------------------------------------------------+----¦
¦Credit by cash ¦78 ¦
¦ ¦00 ¦
+------------------------------------------------------------------------+----¦
¦ ¦$422¦
¦ ¦00 ¦
+-----------------------------------------------------------------------------+
Plaintiff, for reply, admitted the making of the contract for the feed of 21 head of horses from November 22, 1890, to April 27, 1891, at the agreed price of $2.50 per head per month, and denied each and every other allegation in the answer. There was a trial by jury, and a verdict was returned for plaintiff below in the sum of $303.57. From the judgment entered thereon, the defendant prosecutes error.
The question as to the sufficiency of the evidence to sustain the finding and the judgment is presented. All that need be said upon that point is that the evidence produced by the plaintiff was ample to establish the contract as alleged by him, and that he was under the employ of the defendant thereunder as the manager of its business for 14 months, while there was evidence on the other side conducing to show that no such contract was ever made between the parties, but that the plaintiff agreed to work for his board alone. The evidence relating to the various items of the counterclaim, excepting the first, was also conflicting. We think there was sufficient evidence to support the verdict and judgment. The opposite is not claimed, but it is insisted that the finding is contrary to the great weight of the evidence. This, if true, is not alone sufficient to work a reversal.
Another contention is that the court erred in refusing to give the following instruction requested by the defendant: ...
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