Behrends v. Beyschlag

• Decision Date: 08 January 1897
• Citation: 69 N.W. 835,50 Neb. 304
• Parties: BEHRENDS v. BEYSCHLAG.
• Court: Nebraska Supreme Court

50 Neb. 304

69 N.W. 835

BEHRENDS

v.BEYSCHLAG.

Supreme Court of Nebraska.

Jan. 8, 1897.

Syllabus by the Court.

1. Alleged errors in giving instructions must be specifically assigned in the motion for a new trial. Where made in gross, and any one of the instructions is determined to be without error, the whole assignment will be overruled.

2. It is not error to refuse to give an instruction, where its subject-matter has been embraced in the charge to the jury.

3. A contract of sale of corn stated the price, and also the time and place of delivery, but did not provide specifically time, place, or manner of payment. Held, that delivery and payment were to be concurrent acts, and the vendor could insist on payment in cash or money, in the strict sense of the term “current funds.”

4. Held, further, that it was not necessary for the vendee to have had at any one time, or on any one day of the time assigned for the delivery of the corn, sufficient money at the place of delivery to pay for all the corn, the subject of the contract. It was sufficient if, during the whole of such time, he was able, willing, and ready to pay for the corn in the manner contemplated by the contract, if delivered.

5. A stipulation in the following terms, “It is hereby agreed that the clerk of the district court sign this bill of exceptions, instead of the judge who presided at the trial of this case,” held sufficient to authorize the party therein designated to sign and settle the bill of exceptions; that the words “this bill of exceptions,” in such stipulation, were equivalent to an agreement that the document to which the stipulation was attached was a true bill of exceptions.

6. To entitle a bill of exceptions to consideration in this court, it must be authenticated by the certificate of the clerk of the trial court, identifying it as the bill of exceptions.

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

Action by Frederick Beyschlag against A. J. Behrends. From a judgment for plaintiff, defendant brings error. Affirmed.

E. W. Thomas and A. J. Burnham, for plaintiff in error.

John S. Stull, for defendant in error.

HARRISON, J.

The defendant in error commenced this action in the district court of Nemaha county to recover of plaintiff in error the amount which he claimed had become his due as damages by reason of an alleged breach of a contract of sale of some corn, by the failure on the part of plaintiff in error to deliver the corn. The contract of sale, as pleaded, was as follows: “Nemaha City, Neb., March 23, 1891. This is to certify that I have this day sold to F. Beyschlag, to be delivered at Johnson, Nebraska, three or four thousand bushel of good merchantable white corn, at fifty-two cents per bushel, to be delivered within fifteen days from date. March 23rd, 1891. [Signed] A J. Behrends.” An answer was filed for plaintiff in error which contained a general denial, and certain affirmative statements of matters in regard to transactions, alleged to have occurred in respect to the sale of the corn, between the plaintiff in error and an agent of defendant in error, and of other facts relied on as constituting defenses to the cause of action pleaded in the petition, but which need not be quoted or stated in substance. A reply was presented for defendant in error, and as a result of a trial the defendant in error was awarded a verdict and judgment. Of the proceedings during the trial the plaintiff in error now asks a review.

The first alleged error to which attention is directed in the brief filed for plaintiff in error is that instruction numbered 9, prepared and requested by defendant in error, and read to the jury, was incorrect, and should not have been given. The portion of the motion for a new trial in which complaint in relation to this instruction was contained reads as follows: “Because the court erred in giving the following instructions requested by plaintiff, to wit: Instruction No. 1, instruction No. 4, instruction No. 5, instruction No. 6, instruction No. 7, instruction No. 8, instruction No. 9, instruction No. 10.” The instruction numbered 1, to which reference was made in the branch of the motion for a new trial which we have just quoted, was correct, as were some others in the list set out. As the assignment was not separate and specific, but en masse, and one or more of the instructions referred to have been determined to be without error, the assignment is unavailing, and is overruled.

It is urged that the court erred in refusing to give in its charge to the jury instructions numbered 2 and 6 prepared and presented in behalf of plaintiff in error. The instructions last mentioned were as follows: “(2) The jury are instructed that Behrends was not bound to deliver the corn at the time and place named in the contract, unless he received the pay therefor in money and in cash. He was under no obligation to take therefor a check or draft, or anything that was not legal-tender money. He was entitled to receive such pay immediately on delivering the corn.” “(6) The court instructs the jury that, if you find from the evidence that plaintiff was not ready and willing and able to pay for 3,000 bushels of corn at Johnson at the time fixed for the delivery thereof by the contract, then defendant was not bound to deliver the corn at that place, and in that event your verdict should be for defendant.” Of the one of these instructions numbered 6, suffice it to say that the...