Buck v. Reed

• Decision Date: 27 June 1889
• Citation: 42 N.W. 894,27 Neb. 67
• Parties: BUCK ET AL. v. REED.
• Court: Nebraska Supreme Court

27 Neb. 67

42 N.W. 894

BUCK ET AL.

v.REED.

Supreme Court of Nebraska.

June 27, 1889.

Syllabus by the Court.

1. To obtain the review of a decision sustaining or overruling a demurrer, the party must suffer a judgment in chief to be rendered on the demurrer. If he answers over and goes to trial upon the merits, he waives the demurrer, and cannot assign the judgment upon the demurrer as error. Pottinger v. Garrison, 3 Neb. 221, and cases cited in the opinion.

2. The evidence examined and held to sustain the verdict.

Error from district court, Franklin county; GASLIN, Judge.H. Whitmore and E. W. Metcalfe, for plaintiffs in error.

E. A. Fletcher, for defendant in error.

COBB, J.

This cause comes to this court on error from the judgment of the district court of Franklin county. The plaintiff below alleged that the defendants on February 1, 1883, were copartners doing business as a firm in said county, not incorporated; that at about said date, in consideration of $5 per carload of bailed broom-corn, the defendants undertook to act as agents for the shipment and sale of said property, and to account to plaintiff on demand for the net proceeds thereof; that the plaintiff delivered to defendants 14,000 pounds of such broom-corn of the value of $238, to be shipped in the plaintiff's name, which the defendants failed to do, but shipped the same in their own name, and prevented the same from being sold in the earliest and best market, until the same had become of less value, which facts were concealed from the plaintiff; that after shipment the defendants drew against the consignment and paid plaintiff $185 thereon, and no more; that by reason of the fraudulent conversion of said property and concealment of the facts plaintiff claims damages in the sum of $103; that defendants have not settled for the net proceeds of the sale of said property, though requested so to do,--with prayer for judgment. The defendants interposed a general demurrer, “that the petition does not state facts sufficient to constitute a cause of action,” which was overruled. The defendants answered that they received the 14,000 pounds of bailed broom-corn mentioned, to ship to Chicago, Ill., to sell according to their best judgment through commission merchants in that city; that they were to account to the plaintiff for the net proceeds of sale, less $5 per car-load for their services to be performed; that they received and paid to plaintiff $150 in cash, and $12.25 in credit, on account of the shipment and sale of said broom-corn, which was kept stored for several weeks, and until defendants, by due inquiry, deemed it for the best interest of the plaintiff that it should be sold, which was done, for the highest price obtainable; that, after deducting from the gross price the railroad freightage, cartage, storage, and other usual and necessary expenses of shipping and selling such broom-corn, $162.25 was found to be the net proceeds of the sale. The defendants allege that the plaintiff is indebted to them in the sum of $41.69 for goods sold and delivered, and that said account has no connection with the broom-corn transaction, for which defendants ask judgment with interest at 7 per cent. from January 1, 1887. The replication of the plaintiff was a denial of every allegation of new matter set up by defendants. There was a trial to a jury with finding for the plaintiff and verdict for $15.25 damages. The defendants' motion for a new trial was overruled, and judgment entered on the verdict. The plaintiffs in error assign the following errors on the trial in the court below: (1) The court erred in overruling the demurrer to the petition. (2) In overruling defendants' objection to any evidence for the plaintiff. (3) In overruling the motion for a new trial. (4) In entering judgment on the verdict. First, the allegations of the petition are insufficient; second, the evidence does not support the verdict; third, the verdict is contrary to law. (5) In charging the jury orally without the defendant's consent, and without having the charge afterwards reduced to writing.

The first point of the petition in error is doubly waived, and cannot be considered in this court. It will be observed that, upon the overruling of the demurrer to the petition, the defendants answered over to the merits. The alleged error in overruling the demurrer to the petition was waived by defendant's answering over and going to trial upon the merits. So held by the supreme court of Nebraska territory in the case of Mills v. Paynter, 1 Neb. 440, and again by the supreme court of the state in Mills v. Miller, 2 Neb. 299. But in neither of these cases did the point find a place in the syllabus. In the case of Pottinger v. Garrison, 3 Neb. 221, it was the only point presented by the prevailing party and monopolizes the syllabus. The latter case was...