Brown v. Rogers

Decision Date06 January 1887
Citation31 N.W. 75,20 Neb. 547
PartiesBROWN v. ROGERS.
CourtNebraska Supreme Court

OPINION TEXT STARTS HERE

Syllabus by the Court.

Evidence examined, and held to sustain the verdict.

The court, upon such terms as may be just, may permit the amendment of a pleading after the evidence is introduced, and before the case is submitted to the jury; and, unless there is an abuse of discretion in the action of the court, error will not lie.

Instructions set out in the opinion held properly given.

Error to district court, Harlan county.

C. C. Flansburg, for plaintiff in error.

Oyler & Beall, for defendant in error.

MAXWELL, C. J.

This action was brought on the following due-bill:

“ALMA, NEB., November 4, 1884.

Due Woods & Batey, balance on Bird windmill, fifty dollars, ($50.)

+---------------------------+
                ¦[Signed]¦W. ROGERS & BRO.” ¦
                +---------------------------+
                

Indorsed:

DECEMBER 30, 1884.

Received five ($5) dollars by J. G. Woods. Please pay to the bearer forty-five ($45) dollars.

BATEY & WOODS.”

On the nineteenth day of January, 1886, defendants filed their answer as follows:

Defendants, for answer to plaintiff's petition herein filed, state-- First, that on or about the ______ day of ______, 1884, these defendants entered into a verbal contract with Batey & Woods, of Alma, wherein said Batey & Woods agreed with and undertook for the defendants to erect for them a certain Bird windmill and pump, and said windmill and pump guarantied by the said Batey & Woods to be first class in every particular, and to be erected in good and workman-like manner, and warranted to give satisfaction; second, that these defendants agreed to pay in consideration for said mill, when erected as aforesaid, the sum of $______, and that the note or due-bill herein sued upon was given as part of said consideration; third, defendants further say that said Batey & Woods did not erect such a windmill and pump as was contracted for as aforesaid, and that the mill and pump erected by said Batey & Woods, by virtue of said contract, were worthless, and wholly failed to give satisfaction, to the damage of these defendants in the sum of $100.” The reply is a general denial.

On the trial of the cause the jury found a verdict for the defendants, upon which judgment was rendered.

It would subserve no good purpose to set out the evidence at length. It tends to show that the windmill and pump were to be first class in all respects, and that they were very inferior and of but little value. The defendants had already paid a considerable portion of the price of the mill, the duebill being merely for a small balance. The verdict, therefore, was fully justified by the evidence.

2. After the evidence was all submitted, the court permitted the defendants to amend their answer by adding the words, “And defendants, relying upon said warranty, purchased the mill and pump...

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7 cases
  • Whipple v. Fowler
    • United States
    • Nebraska Supreme Court
    • September 18, 1894
    ...to be amended to conform to the facts proved. Keim v. Avery, 7 Neb. 54; Catron v. Shepherd, 8 Neb. 41, 1 N. W. 204;Brown v. Rogers, 20 Neb. 547, 31 N. W. 75;Ward v. Parlin, 30 Neb. 376, 46 N. W. 529. Error is assigned upon the ruling of the court below in admitting the testimony of the defe......
  • Whipple v. Fowler
    • United States
    • Nebraska Supreme Court
    • September 18, 1894
    ... ... amended to [41 Neb. 681] conform to the facts proved ... ( Keim v. Avery , 7 Neb. 54; Catron v ... Shepherd , 8 Neb. 308, 1 N.W. 204; Brown v ... Rogers , 20 Neb. 547, 31 N.W. 75; Ward v ... Parlin , 30 Neb. 376, 46 N.W. 529.) ...          Error ... is assigned upon the ... ...
  • Storz v. Finkelstein
    • United States
    • Nebraska Supreme Court
    • April 10, 1896
    ...there has been an abuse of discretion. This is the settled law of this state. Hale v. Wigton, 20 Neb. 83, 29 N. W. 177;Brown v. Rogers, 20 Neb. 547, 31 N. W. 75;Ward v. Parlin, 30 Neb. 376, 46 N. W. 529; Blair v. Manufacturing Co., 7 Neb. 147. The discretion of the court below was not impro......
  • Scroggin v. Johnston
    • United States
    • Nebraska Supreme Court
    • September 17, 1895
    ...pleading to be amended to conform to the facts proved. Keim v. Avery, 7 Neb. 54; Homan v. Steele, 18 Neb. 652, 26 N. W. 472;Brown v. Rogers, 20 Neb. 547, 31 N. W. 75;Ward v. Parlin, 30 Neb. 376, 46 N. W. 529;Whipple v. Fowler, 41 Neb. 675, 60 N. W. 15. We fail to discover any abuse of discr......
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