Dunn v. Bushnell

• Decision Date: 08 January 1902
• Docket Number: 10,810
• Citation: 88 N.W. 693,63 Neb. 568
• Parties: W. H. H. DUNN v. DAVID I. BUSHNELL ET AL
• Court: Nebraska Supreme Court

88 N.W. 693

63 Neb. 568

W. H. H. DUNN v. DAVID I. BUSHNELL ET AL

No. 10,810

Supreme Court of Nebraska

January 8, 1902

ERROR from the district court for Lancaster county. Tried below before HOLMES, J. Reversed.

REVERSED AND REMANDED.

Tibbets Bros. Morey & Anderson, for plaintiff in error.

Doyle & Berge, contra.

OLDHAM C. SEDGWICK and POUND, CC. concur.

OPINION

OLDHAM, C.

The plaintiff in the lower court sued the defendant on a promissory note. The defendant answered, admitting the execution and delivery of the note, and alleging that it was given in part payment of the purchase price of a quantity of hemp-seed purchased from the plaintiff. He alleged that the hemp-seed was warranted by the plaintiff to be first-class hemp-seed, equal in quality to first-class Kentucky hemp-seed, and seed which would, under proper conditions raise a first-class crop of hemp. He also alleges that he relied solely on the warranty of the plaintiff in the purchase of the seed; that the seed was of an inferior quality; that it was sowed and the crop was cultivated in a good and husbandlike manner, and that, because of the inferior quality of the seed, he raised less than a half crop of hemp from the land sowed with the seed purchased from the plaintiff, and prayed damages on his counter-claim for the difference in the price of the crop raised from the seed sold him by plaintiff, and the price of a crop which would have been raised from seed of the quality which he alleged was warranted to him by the plaintiff. Plaintiff replied to this answer by a general denial. A trial was had to a jury. Plaintiff recovered judgment for his note and interest, and defendant brings error to this court.

Plaintiff in error, who will be herein designated as the defendant alleges error, in the trial of the cause in the court below in the exclusion of evidence and in the refusing and giving of instructions. An examination of the record leads us to the conclusion that there was no prejudicial error committed by the trial court in the exclusion of evidence, and although some of the instructions requested by the defendant and refused by the court contained correct propositions of law, we do not think that the trial court erred in their refusal, for the reasons that the principles announced in each one of the refused instructions were fairly and fully embodied in the instructions given by the court on its own motion.

The objection urged against the sixth paragraph of instructions given by the court on its own motion presents a more serious question and one which requires a careful perusal of the evidence and pleadings in determining whether or not it was warranted under the issues in this case. The instruction is as follows: "6. If on the other hand you find and believe from the evidence that the defendant had knowledge of the inferior character of the seed before the same was sown, in event you believe the same was inferior, but notwithstanding such knowledge retained the same and used it for the purpose for which it was purchased, then and in that event he could not recover on his counter-claim in this case, but would be deemed in law to have waived his right to rely upon the representations of the plaintiff, in event you find any were so made, and the plaintiff would be entitled to recover the full amount of the note sued on together with interest from the date thereof." The first question to be determined with reference to this instruction is as to whether it is supported by the evidence offered and the pleadings filed in this case. The next question is as to whether this instruction is a correct abstract declaration of the law as applicable to the issues involved herein.

The evidence offered by the defendant all tended to show that he had no knowledge of the alleged inferior quality of the seed until after the maturity of the crop grown from it, and that he bought it relying solely...