Gregory v. Kaar

• Decision Date: 29 March 1893
• Citation: 54 N.W. 859,36 Neb. 533
• Parties: GREGORY v. KAAR ET AL.
• Court: Nebraska Supreme Court

36 Neb. 533

54 N.W. 859

GREGORY

v.KAAR ET AL.

Supreme Court of Nebraska.

March 29, 1893.

Syllabus by the Court.

1. Assignments of error which are so vague and indefinite as not to indicate the rulings complained of will be disregarded in this court.

2. A new cause of action should not be presented in the reply, but when no objection is made on that ground in the district court, and the issues presented are submitted on their merits, the objection that the cause of action was first stated in the reply will be held to have been waived.

3. A bill of exceptions, duly allowed and certified by the trial judge, imports absolute verity, and its truthfulness cannot be assailed collaterally.

4. Evidence held to sustain the finding and judgment of the district court.

Error to district court, Lancaster county; Hall, Judge.

Action by the National Lumber Company against John S. Gregory, executor of John McAllister, and Theodore Kaar, to foreclose a mechanic's lien against land of McAllister. Kaar filed a cross petition for materials furnished to McAllister, and prayed a foreclosure of his lien. There was judgment in favor of Kaar, and, the executor's motion for a new trial being denied, he brings error. Affirmed.John S. Gregory, for plaintiff in error.

T. C. Munger, for defendants in error.

POST, J.

The National Lumber Company commenced an action in the district court of Lancaster county to foreclose a mechanic's lien against a certain lot in the city of Lincoln, owned by John McAllister, who was made a defendant in said action. The defendant in error Theodore Kaar, who had filed a statement under oath, claiming a lien against the same property, was also made a party defendant. The latter filed a cross petition, alleging that he had furnished stone for use in the construction of the building on said lot under a contract with McAllister, the owner, and that there was due him a balance of $19.41, and praying for a foreclosure of his lien. To this cross petition McAllister filed an answer, in which he alleged payment in full; also a cross bill against Kaar for $327.34 on account of money advanced for stone by the terms of another and different contract, alleging as a breach thereof a failure to deliver said stone. To the cross bill of McAllister, Kaar filed a pleading entitled an “answer,” in which he denies that he was in default of any of the provisions of the contract, and alleging that all money paid him by McAllister was for stone before that time actually delivered. During the trial Kaar, by leave of court, over the objection of McAllister, filed an additional pleading, entitled “An amended reply and answer to cross petition,” which, after a denial of payment of the bill set out in the original cross petition, is as follows: “By way of counterclaim and set-off, and in answer to the cross petition of McAllister, defendant, the said Kaar denies that he agreed to furnish to said McAllister 700 perch of com. ruble stone at an agreed price of $1.00 per perch; that this defendant did deliver to defendant McAllister a large amount of ruble stone under an oral agreement with the said McAllister, but at the agreed price of $1.20 per perch of 1,650 lbs., and not as alleged in said McAllister's cross bill, and that the payments made by defendant McAllister on said ruble stone were made at that price; that the defendant delivered to said McAllister, under such agreement, on or before April 20, 1887, 492 29-33 perch, amounting to $591.45, for ruble stone; that said defendant McAllister has paid in all for said ruble stone the sum of $570, and there is now due this defendant from said McAllister the sum of $21.45, with interest from April 20, 1887. This defendant further says that on or before July 23 1887, he delivered to said McAllister, under an oral agreement to pay therefor the sum of 25 cents per superficial foot, 12 pieces of stone 19 in. by 15 in. by 6 in.; 8 pieces 20 in. by 8 in.; 4 pieces of stone, dimensions of stone 5 ft. by 8 in., and 5 pieces 23 in. by 8 in. by 5 feet,--of the total value of $81.47; and there is now due this defendant from said...