Craig v. Weitner

• Court: Supreme Court of Nebraska
• Writing for the Court: MAXWELL
• Citation: 50 N.W. 442,33 Neb. 484
• Parties: CRAIG v. WEITNER.
• Decision Date: 25 November 1891

33 Neb. 484
50 N.W. 442

CRAIG
v.
WEITNER.

Supreme Court of Nebraska.

Nov. 25, 1891.

Syllabus by the Court.

In an action upon a contract to exterminate the prairie dogs upon a certain tract of land, held, that there had been a substantial compliance with the terms of the contract, and that the plaintiff was entitled to recover.

Error to district court, Colfax county; POST, Judge. Affirmed.

Action by one Weitner against one Craig on a contract. Judgment for plaintiff. Defendant brings error.

[50 N.W. 442]

Phelps & Sabin, for plaintiff in error.

Geo. H. Thomas, for defendant in error.

[50 N.W. 443]

MAXWELL, J.

The defendant in error brought an action in the district court of Colfax county against the plaintiff in error upon a cause of action set forth in the petition, as follows: “That on or about the 27th day of April, 1887, the plaintiff and the defendant entered into an oral agreement and contract, whereby it was contracted and agreed by and between said plaintiff and defendant that said plaintiff should undertake the task and work of killing, exterminating, destroying, and banishing from a certain tract of land in Colfax precinct, Colfax county, Nebraska, owned by defendant, a certain lot of prairie dogs, which then infested said land, and destroy and break up the so-called ‘dog town’ then being on said land, and the said defendant, in consideration of the performance of said labor aforesaid, agreed to pay to said plaintiff the sum of $125. (2) Soon after the making of said agreement, to-wit, on or about May 1, 1887, said plaintiff entered upon the performance of said contract on his part, and so continued the work until he had killed, exterminated, and destroyed and banished said prairie dogs from said land, and broke up and destroyed said ‘dog town,’ and said plaintiff had fully and entirely kept and performed all the conditions of said contract on his part to be kept and performed prior to June 1, 1888, and before the commencement of this action. (3) At or about the time of the commencement of said work by plaintiff, to-wit, on or about May 1, 1887, the said defendant paid to said plaintiff on said contract the sum of $25, and thereafter, to-wit, on or about the ______ day of ______, 188-, said defendant paid to said plaintiff on said contract the further sum of $50; but said defendant, though often requested so to do, has wholly failed, neglected, and refused to pay to said plaintiff the balance due to him on said contract, the sum of $50, and...