Fox v. Graves

• Decision Date: 21 January 1896
• Citation: 46 Neb. 812,65 N.W. 887
• Parties: FOX ET AL. v. GRAVES.
• Court: Nebraska Supreme Court

46 Neb. 812

65 N.W. 887

FOX ET AL.

v.GRAVES.

Supreme Court of Nebraska.

Jan. 21, 1896.

Syllabus by the Court.

1. Although the prayer for relief is a part of the petition, it is no portion of the statement of facts required to constitute a cause of action. The entire omission of any demand for judgment would not subject the petition to general demurrer.

2. A verdict must not exceed the sum prayed for in the petition. If it does, objection on that ground should be raised in the motion for a new trial, or it will be deemed waived.

3. Where a petition contains inconsistent counts, the proper motion is to strike out all but one, or require the plaintiff to elect upon which cause of action he will proceed to trial.

Error to district court, Madison county; Powers, Judge.

Action by George Graves against Fox, Canfield & Co. Judgment for plaintiff. Defendants bring error. Affirmed.Brome, Burnett & Jones, for plaintiffs in error.

Allen, Reed & Ellis, for defendant in error.

NORVAL, J.

Defendant in error filed his petition in the district court, alleging: “That Fox, Canfield & Co., on the 1st day of May, 1882, and at the times of the purchases and transactions hereinafter stated, was a partnership firm, doing business in the state of Nebraska, in Stanton county and adjoining counties; that the sole individual members of said partnership were and are the defendants George Fox. S. S. Canfield, and H. C. Brome; that the defendants, as such partners, in the partnership name, on or about the months of May, June, August, September, October, November, and December of the year 1882, and about the month of November, 1883, bought of plaintiff, and had delivered to them by plaintiff, at their request, lumber, bridge, and building material of the reasonable value of $1,501.38, which defendants agreed to pay on delivery, and on or about the 27th day of September, 1884, plaintiff paid freight for defendants, at their request, the sum of $132.50, no part of which has been paid except the sum of $1,026.92; that there is due plaintiff and remaining unpaid upon said account the sum of $606.92 principal and $125.95 interest; that a copy of the account for said material sold and freight paid, with all credits thereon, are hereto attached, marked ‘Exhibit A,’ and made part of this petition; wherefore plaintiff demands judgment against defendants for the sum of $734.52, and with interest thereon from July 20, 1885, less amount of certain freight bills, with costs.” Count 2: “Plaintiff, for further cause of action against the defendants, states that Fox, Canfield & Co. are a partnership firm carrying on business in Stanton county and adjoining counties in the state of Nebraska, composed of George Fox, S. S. Canfield, and H. C. Brome; that on or about the 1st day of July, 1885, the matters in controversy between plaintiff and defendants, being the amount set forth in Exhibit A, hereto attached, were, by agreement by plaintiff and defendants, referred to Knox Tipple and J. B. Walker as arbitrators, with authority in said arbitrators to consider, ascertain, and settle all matters of account between plaintiff and defendants, and to find the balance due upon such settlement; that on or about the 20th day of July, 1885, the said Knox Tipple and J. B. Walker, after full and thorough examination of matters referred to them as said arbitrators, found that there was due and owing from defendants to plaintiff the sum of $734.52, except the amount of certain freight bills not promised, which is now due and wholly unpaid; that the balance so found due by said arbitrators was upon the account set forth in the first count hereof, and it was agreed between the plaintiff and defendants at the time of the submission of said matters to said arbitrators that their findings and award should be a final adjustment and complete settlement between the parties in that regard; wherefore plaintiff demands judgment against the defendants for the sum of $734.52, and interest thereon from July 20, 1885, less amount of certain freight bills, with cost of suit.” A motion was filed to strike from the petition all of the first count as irrelevant and redundant, immaterial and prejudicial, which motion was denied by the court, and an exception was taken to the ruling. Thereupon an answer was filed consisting of a general denial. There was a trial to a jury, with a verdict and judgment for ...