Barker v. Davies

• Decision Date: 04 February 1896
• Citation: 47 Neb. 78,66 N.W. 11
• Parties: BARKER v. DAVIES.
• Court: Nebraska Supreme Court

47 Neb. 78

66 N.W. 11

BARKER

v.DAVIES.

Supreme Court of Nebraska.

Feb. 4, 1896.

Syllabus by the Court.

1. By failure to mention, in a motion for a new trial, the ruling upon a motion to make more specific and certain the averments of a pleading, the party complaining waives his right to have reviewed the ruling complained of.

2. Instructions held correct, which, while recognizing a defendant's right to insist upon the strict performance of the terms upon which a sale of personal property was alleged to have been made, nevertheless, consistently with the evidence introduced, permitted the jury to consider whether or not such strict performance had been waived by the party sought to be charged.

Error to district court, Merrick county; Marshall, Judge.

Action by Charles K. Davies against Samuel M. Barker. Judgment for plaintiff. Defendant brings error. Affirmed.Albert & Reeder and Norval Bros. & Lowley, for plaintiff in error.

M. Whitmoyer and John Patterson, for defendant in error.

RYAN, C.

This action was brought in the district court of Merrick county by the defendant in error to recover the purchase price of certain produce sold to, and the reasonable value of certain services performed for, the plaintiff in error. There was an answer, by which there was denied the purchase and delivery of the hay and straw hereinafter referred to, and, in addition, by way of counterclaim, there was alleged a payment of $96.05, as well as the existence of damages, to the amount of $100, caused by the alleged failure by plaintiff in error to cut and properly put up certain hay. By reply, these affirmative matters were denied. There was a judgment in favor of defendant in error for the sum of $197.82.

The first question argued involves the overruling of a motion to make more definite and certain the averments of the petition. As this ruling was not referred to in the motion for a new trial it cannot now be considered.

In the petition it was alleged that the defendant in error had sold and delivered to plaintiff in error 100 tons of hay at the agreed price of $2 per ton, and 70 tons of straw at the same price per ton. These items were controverted by a general denial, contained in the answer. In respect to the hay and straw, there seems to have been but little disagreement, in the evidence, that this was to be baled by the plaintiff in error, and that, after this baling was done, it was to be delivered on board the cars at a designated near-by railroad siding. It also seems clear that such of the hay as was baled was delivered as agreed. There was, however, quite a large amount of hay and all the straw which Mr. Barker never had baled, it would seem, because he thought it was not fit for baling. There was ample evidence from which the jury was justified in finding that Mr. Barker used the unbaled part of the hay and straw in maintaining and caring for his stock at a place where no railroad shipment was necessary. On this branch of the case the sole point made is indicated by the second instruction, asked by the plaintiff in error, which was refused by the court. This instruction was in the following language: “The plaintiff claims, among other things, $200 for 100 tons of hay, which he alleges he sold and delivered to the defendant. If you find that this 100 tons of hay was a part of a larger amount, and that said 100 tons was not set apart or designated or separated from the balance of the said larger amount, and that only a part of said 100 tons was actually...