Carstens v. McDonald
| Decision Date | 16 January 1894 |
| Docket Number | 5474 |
| Citation | 57 N.W. 757,38 Neb. 858 |
| Parties | HARTWIG CARSTENS v. W. G. McDONALD |
| Court | Nebraska Supreme Court |
ERROR from the district court of Pierce county. Tried below before POWERS, J.
AFFIRMED.
J. B Smith, for plaintiff in error.
Douglas Cones, contra.
This action was brought in the court below by W. G. McDonald against Hartwig Carstens, to recover damages for an alleged breach of an executory contract for the sale of corn. There was a verdict and judgment in plaintiff's favor for $ 6.25, and defendant prosecutes error to this court.
Defendant in error is in the stock business in Pierce county, and plaintiff in error is engaged in farming in said county. The proof shows that on the 7th day of November, 1890, McDonald went to Carstens' farm for the purpose of buying the latter's crop of corn, and, after some negotiations between the parties upon the subject, Carstens finally agreed to sell, and deliver in a reasonable time a quantity of corn at the agreed price of thirty-five cents per bushel. Fifty dollars of the purchase price was paid at the time by McDonald giving his check on the bank for that sum, and the purchaser agreed to pay the balance upon the delivery of the corn. One hundred and forty-one bushels and a half of corn, and no more, were delivered upon the contract early in December, 1890. Carstens informed defendant he would deliver enough more to make 600 bushels, to which McDonald replied that he would not receive the same, unless he would deliver 1,000 bushels. The dispute on the trial was as to the quantity of corn sold. Plaintiff below claims that he purchased 1,000 bushels, while Carstens insists that no definite number of bushels was mentioned at the time the contract was made, but that the agreement covered merely his yellow corn,--that which had been gathered and piled on the ground, as well as the portion then in the field ungathered. The total amount of the yellow corn was afterwards ascertained to be about 600 bushels.
The first assignment in the petition in error is based upon the admission in evidence of the check above mentioned, of which the following is a copy:
The ground of objection to the introduction of the instrument, as stated in the record, is "that it is admitted by the defendant, Mr. Carstens, that he received the $ 50 as part payment, and that is all this check can be used for." Had this check been offered for the purpose of proving payment, the error in the introduction thereof, if any, would have been without prejudice, since the payment of the $ 50 is admitted by the defendant's answer; but the writing was not put in evidence for such purpose, but to corroborate the testimony of the plaintiff below as to the quantity of corn purchased. It will be noticed that on the face of the check appear the words "35c. per bushel for 1,000 bus. corn." They were made by the drawer of the check. True, there is a dispute in the testimony as to the precise time they were written, but according to the testimony of plaintiff in error, which is not contradicted by any other witness, they were, at least, on the instrument when plaintiff received the money thereon from the bank, and he knew they were there at that time. According to the testimony of defendant in error, they were written by himself in the presence of Mr. Carstens at the time the contract was entered into, and prior to the delivery of the check, as a memorandum of the agreement. We think it competent evidence of the transaction as against plaintiff in error.
Another ground urged for a reversal is that the verdict is...
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