C. N. Paine & Co. v. Kohl

• Decision Date: 01 July 1883
• Citation: C. N. Paine & Co. v. Kohl, 16 N.W. 824, 14 Neb. 580 (Neb. 1883)
• Parties: C. N. PAINE & CO., PLAINTIFFS IN ERROR, v. CHARLES KOHL, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

16 N.W. 824

14 Neb. 580

C. N. PAINE & CO., PLAINTIFFS IN ERROR, v. CHARLES KOHL, DEFENDANT IN ERROR

Supreme Court of Nebraska

July 1, 1883

ERROR to the district court for Adams county.Tried below before GASLIN, J.

REVERSED AND REMANDED.

Batty & Ragan, for plaintiff in error.

Dilworth & Smith, for defendant in error.

OPINION

COBB J.

This was an action by C. N. Paine & Co. against Chas. Kohl for the agreed price of a frame building alleged to have been sold by the former to the latter while standing on rollers in the street in the city of Hastings.The building was to be moved to and upon a certain lot of said city by C. N. Paine & Co. but there is a conflict of testimony as to whether it was or was not a part of the contract that C. N. Paine & Co. should, in addition to moving the building to and upon the lot of Kohl, also place it upon a good foundation.There is no conflict in the testimony that C. N. Paine & Co. did move the building to and upon the said lot, that it was not placed upon any foundation, and in that condition and shortly after its removal to and upon the said lot, it was destroyed by fire, which consumed a large portion of said city.

The jury to whom the cause was tried found their verdict in favor of the defendant.

The plaintiff who brings the cause to this court on error assigns sixteen grounds of error, but as we have come to the conclusion that there must be a new trial for error in the instructions of the court, the other errors assigned will not be examined.

Among the instructions given in charge by the court to the jury upon its own motion were the following:

2.If you find from the evidence that the plaintiffs moved said building upon defendant's lot, and had placed it in the position and upon the foundation that they were bound to do by...