Barker v. Davies
| Court | Supreme Court of Nebraska |
| Citation | 47 Neb. 78,66 N.W. 11 |
| Decision Date | 04 February 1896 |
| Parties | BARKER v. DAVIES. |
47 Neb. 78
66 N.W. 11
BARKER
v.
DAVIES.
Supreme Court of Nebraska.
Feb. 4, 1896.
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.
[66 N.W. 11]
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...
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Weideman v. Peterson's Estate, No. 29200.
...First paragraph of syllabus in Caproon v. Mitchell, 77 Neb. 562, 110 N. W. 378, and also first paragraph of syllabus of Barker v. Davies, 47 Neb. 78, 66 N. W. 11, overruled. 3. The rule announced in Estate of Fitzgerald v. Union Savings Bank, 65 Neb. 97, 90 N. W. 994, that, “on appeal to th......
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Baker v. McDonald
...balance of the purchase price, and this on the theory that the title had passed. Allen v. Rushfort (Neb.) 101 N. W. 1028;Barker v. Davies, 47 Neb. 78, 81, 66 N. W. 11. Had McDonald brought this action, claiming a special interest in the hay, there is no doubt that, upon proof of fraud or mi......
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Caproon v. Mitchell
...alleged as error, or urged as a reason why a new trial should be granted. We cannot, therefore, consider this assignment. Barker v. Davies, 47 Neb. 78, 66 N. W. 11. The evidence taken upon the trial has not been preserved in a bill of exceptions, and we have nothing before us but the pleadi......
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State Ins. Co. v. New Hampshire Trust Co.
...on March 23, 1888. The application, from which was omitted all mention of this last-named mortgage, was dated March 15, 1890, and the [66 N.W. 11]policy thereon, claimed to have issued, was of the same date. The only mention of the defendant in error to be found in all these insurance trans......
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Weideman v. Peterson's Estate, No. 29200.
...First paragraph of syllabus in Caproon v. Mitchell, 77 Neb. 562, 110 N. W. 378, and also first paragraph of syllabus of Barker v. Davies, 47 Neb. 78, 66 N. W. 11, overruled. 3. The rule announced in Estate of Fitzgerald v. Union Savings Bank, 65 Neb. 97, 90 N. W. 994, that, “on appeal to th......
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Baker v. McDonald
...balance of the purchase price, and this on the theory that the title had passed. Allen v. Rushfort (Neb.) 101 N. W. 1028;Barker v. Davies, 47 Neb. 78, 81, 66 N. W. 11. Had McDonald brought this action, claiming a special interest in the hay, there is no doubt that, upon proof of fraud or mi......
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Caproon v. Mitchell
...alleged as error, or urged as a reason why a new trial should be granted. We cannot, therefore, consider this assignment. Barker v. Davies, 47 Neb. 78, 66 N. W. 11. The evidence taken upon the trial has not been preserved in a bill of exceptions, and we have nothing before us but the pleadi......
-
State Ins. Co. v. New Hampshire Trust Co.
...on March 23, 1888. The application, from which was omitted all mention of this last-named mortgage, was dated March 15, 1890, and the [66 N.W. 11]policy thereon, claimed to have issued, was of the same date. The only mention of the defendant in error to be found in all these insurance trans......