Brown v. Cleveland

• Citation: 44 Neb. 239,62 N.W. 463
• Parties: BROWN ET AL. v. CLEVELAND.
• Decision Date: 05 March 1895
• Court: Supreme Court of Nebraska

44 Neb. 239

62 N.W. 463

BROWN ET AL.

v.CLEVELAND.

Supreme Court of Nebraska.

March 5, 1895.

Syllabus by the Court.

1. When the evidence was conflicting, the verdict reached will not be disturbed, unless clearly unsustained by the proofs.

2. When testimony has been received without objection, the question of its competency is waived, and such testimony will not afterwards be eliminated from the records merely because, upon proper timely objection, it would have been excluded. Oberfelder v. Kavanaugh, 45 N. W. 471, 29 Neb. 427, followed.

Error to district court, Douglas county; Ferguson, Judge.

Action by Royal C. Cleveland against Edgar Brown and John C. Gibson. Judgment for plaintiff, and defendants bring error. Affirmed.Herdman & Herdman, for plaintiffs in error.

John P. Breen, for defendant in error.

RYAN, C.

The defendant in error recovered judgment against Edward Brown, who did not answer, as well as against John J. Gibson, whose answer was a general denial. Error proceedings by both defendants present for review the questions which we shall now consider. The action was for the value of certain hay and grain averred to have been sold by the defendant in error to the plaintiffs in error, constituting the alleged firm of Brown & Co. The sole question of fact as to which there was a controversy on the trial was whether or not Mr. Gibson was associated as a partner with Mr. Brown in the livery business, when the latter purchased, for use in the stable, the various articles of feed for the payment of which Mr. Gibson, as a partner, was by the jury found liable. As there was sufficient proof to justify this verdict, it will not be disturbed as being without support of evidence. During the trial a Mr. Mace testified that at various times, and while the several items were being sold by the defendant in error, he, the said witness, likewise sold hay and grain for use in the same stable as was that as to which a recovery was prayed in this case; that these sales were negotiated with Mr. Brown, by whom, as well as by other parties, the witness had been told that Mr. Gibson was associated as a partner with Mr. Brown, and that witness had sued both alleged partners for the amount of his bill, whereupon Mr. Gibson settled. On cross-examination Mr. Mace said that the settlement with Mr. Gibson was at a discount,--Mr. Gibson all the time disclaiming the alleged partnership relation,--and that both witness and Mr. Gibson agreed to settle solely to...