Downing v. Glenn

• Decision Date: 10 April 1889
• Citation: 41 N.W. 1119,26 Neb. 323
• Parties: DOWNING v. GLENN.
• Court: Nebraska Supreme Court

26 Neb. 323

41 N.W. 1119

DOWNING

v.GLENN.

Supreme Court of Nebraska.

April 10, 1889.

Syllabus by the Court.

1. Petition examined, and held sufficient, when assailed after judgment.

2. Evidence examined, and held, under the issues as formed by the pleadings, sufficient to sustain the verdict.

3. Objections to instructions, or to the want thereof, not made to the district court, cannot be entertained by the supreme court.

Error to district court, Kearney county; GASLIN, Judge.Joel Hull and Calkins & Pratt, for plaintiff in error.

J. L. McPheely and J. M. Stewart, for defendant in error.

REESE, C. J.

This was an action to recover an amount alleged to be due on a promissory note. The note was payable to Fuller & Johnson or order, and had not been transferred to plaintiff, except by indorsement, made by himself, and there was no direct allegation in the petition that it was the property of plaintiff. For this reason it is insisted that the petition did not state facts sufficient to constitute a cause of action. The allegations of the petition were, in substance, that defendants were indebted to plaintiff upon the note, which was attached to the petition, and that there was due plaintiff from defendants $66.60, with interest, etc., for which judgment was demanded.

While the petition was quite informal, yet it must be held sufficient, after judgment. It might no doubt have been assailed by motion, under the provisions of section 125 of the Civil Code, and an order would doubtless have been made requiring plaintiff to make it more definite and certain; but, in default of such objection, and in view of section 121, Id., which requires the petition to receive a liberal construction, and as no attack was made upon it, and the answer of defendant, in direct terms, alleged that the note was not the property of plaintiff, but was the property of Fuller & Johnson, thus forming an issue upon which the case was tried, we do not think that defendant can now be heard to insist upon the alleged defect in the pleading. The note was given for twine to be used in connection with a harvester in binding grain, and for freight paid upon a harvester, purchased by defendants of Fuller & Johnson, through plaintiff, as their agent. It was shown that the harvester failed to comply with the warranty given by Fuller & Johnson at the time of its purchase, and that it was returned to them, whereupon they agreed to surrender to defendants the three notes for $105 each,...