Cleveland Paper Co. v. Banks

• Decision Date: 09 October 1883
• Citation: 16 N.W. 833,15 Neb. 20
• Parties: CLEVELAND PAPER CO. v. BANKS.
• Court: Nebraska Supreme Court

15 Neb. 20

16 N.W. 833

CLEVELAND PAPER CO.

v.BANKS.

Supreme Court of Nebraska.

Filed October 9, 1883.

Error from Douglas county.

Congdon, Clarkson & Hunt, for plaintiff.

E. M. Bartlett, for defendant.

MAXWELL, J.

This is an action by the plaintiff against the defendant to recover the sum of $213.48, and interest, for paper alleged to have been sold by the plaintiff to the defendant. The answer is a general denial. On the trial of the cause the jury returned a verdict in favor of the defendant, upon which judgment was rendered. The errors assigned are (1) misconduct of the prevailing party; (2) that the verdict is not sustained by the evidence; (3) errors of law occurring at the trial. The testimony shows that in October, 1879, one Smith, the secretary of the Omaha Post Printing Company, applied to one Taylor, the salesman of the plaintiff at Chicago, to purchase the paper in question. Taylor refused to sell the paper unless Banks, who was the president of the printing company, and Leidke, the vice-president, would agree to pay the bill. On the sixth of October of that year Smith wrote to Taylor, saying that “Mr. Banks is willing to accept the bills individually, but he declines to ask either Capt. Leidke or any one else to go security for such bills for such amounts as a couple of hundred dollars.” On the thirtieth of October, 1879, Smith wrote to Taylor acknowledging the receipt of paper, and saying, it “is perfectly satisfactory as to quality. If you have not already drawn on us we will remit you, about the twentieth November, one-half the amount of your bill, and the other half about the twentieth of December.” There is also a letter from the defendant to the plaintiff, dated April 16, 1880, wherein he says, “I will pay the old account, and then you must give 60 days on the new order,” etc. There is a large amount of other testimony, to which it is unnecessary to refer.

During the trial of the cause an attempt was made by the defendant's attorney to show that Smith, the secretary of the company, had embezzled funds belonging to the company. This was properly ruled out as improper. It was also stated that the theory of the defendant's case was that Smith had received this paper and to his own use; but there was no testimony to that effect. In the argument of the cause to the jury, however, Mr. Peckham, the defendant's attorney, used the following language: “The history of Smith you know; they told you that directly after these goods were shipped Smith went away, and that he went away with property that was not his own.” The plaintiff's attorneys objected to the use of this language, and the court restrained the attorney from making such statements. The rights of parties are...