Aultman, Miller & Co. v. Scheele

• Decision Date: 11 June 1892
• Citation: 34 Neb. 819,52 N.W. 817
• Court: Nebraska Supreme Court
• Parties: AULTMAN, MILLER & CO. v. SCHEELE ET AL.

34 Neb. 819

52 N.W. 817

AULTMAN, MILLER & CO.

v.SCHEELE ET AL.

Supreme Court of Nebraska.

June 11, 1892.

Syllabus by the Court.

Where the verdict is against the clear weight of testimony it will be set aside, and a new trial granted.

Error to district court, Nemaha county; BROADY, Judge.

Action by Aultman, Miller & Co. against Scheele & Fisher on an account for goods sold. Verdict for defendants. New trial denied, and judgment entered. Plaintiff brings error. Reversed and remanded.W. H. Kelligar, for plaintiff in error.

G. W. Cornell, for defendants in error.

MAXWELL, C. J.

This action was brought to recover a balance on an account for binding twine. The whole accountis $1,467.75, and the payments thereon, $1,298.74, leaving a balance due the plaintiff of $169.01, for which it prays judgment. The defendants, in their answer, admit “receiving 9,000 lbs. of twine of plaintiff, valued at $1,205.00, and defendants further admit paying plaintiff the sum of $1,298.74 as itemized in plaintiff's petition, and which now stands as a credit in favor of these defendants, and against said plaintiff, and defendants aver that there is now due thereon from plaintiff to defendants the sum of $93.74 as balance due defendants, with interest thereon from April 1, 1889, at the rate of 7 % per annum, as appears more fully by the account hereto attached. And for further defense to plaintiff's petition, defendants deny each and every allegation therein not herein expressly admitted. Wherefore defendants pray judgment against said plaintiff in the sum of $93.74 with interest from April 1, 1889, at 7 per cent. per annum, and costs of suit.” On the trial of the cause the jury returned a verdict in favor of the defendants for the sum of $105.56, and a motion for a new trial having been overruled, judgment was entered on the verdict. On the trial the parties entered into the following stipulation: “Defendants admit that they received a car from plaintiff of the C. & C. M. R. R. No. 1,132, billed to Wm. Mangan at South Auburn. Plaintiff admits that if it sent the twine in dispute it was sent in that car. Defendants admit that if the twine was sent in that car, and they got it, they owe for it. It is further agreed that, if there is a verdict for the plaintiff, it shall be for $169.01, with 7 % interest from October 1, 1888. Plaintiff agrees, if defendants succeed, they shall have a verdict for $93.74, with interest at 7% from April, 1889.” It is proved beyond dispute that the twine was shipped in car 1,132, billed to William Mangan at South Auburn, Neb.; that the contents of the car were transferred to the defendants, and that the seal had not been broken when they received the car. T. W. McCargar was the general agent of the plaintiff at Council Bluffs, Iowa, and the defendants sent the following letter to him: “Auburn, June 6th, 1888. T. W. McCargar. Dear Sir: We note that you don't know about how an order was sent you about two weeks ago, we ordered 10,000 Manilla and 1,000 sisel and 2,000 we got in the car with binders we want the order filled with Buckeye twine as you had taken the order when we made the contract fill the car with 6 foot binders and bundle carriers send 3. We hope this order will be filled at once if not filled at this date our binders are all sold that are on hand. Yours truly, SCHEELE & FISHER.” The original letter is before us, together with a stipulation of the attorneys that the appearance of the paper at the word “June” is not to be considered. This stipulation, no doubt, was felt to be necessary by reason of the testimony of one of the defendants who seemed to be anxious to swear that the word “June” had been inserted in place of July. The change, however, seems to have existed alone in his imagination. He...