Habig v. Layne

• Decision Date: 04 January 1894
• Citation: 38 Neb. 743,57 N.W. 539
• Parties: HABIG ET AL. v. LAYNE ET AL.
• Court: Nebraska Supreme Court

38 Neb. 743

57 N.W. 539

HABIG ET AL.

v.LAYNE ET AL.

Supreme Court of Nebraska.

Jan. 4, 1894.

Syllabus by the Court.

1. It is error for a trial court to instruct a jury to return a verdict for the defendants when there is any competent evidence adduced which, if believed by the jury, would support a verdict for the plaintiff.

2. Where the evidence is uncontradicted, and reasonable men might honestly draw different inferences therefrom, it is for the jury, and not the court, to say what inference such evidence warrants.

3. In an action against several defendants, impleaded as partners, the plaintiff is entitled to lay all the facts before the jury, and have their opinion as to whether the transaction is not that of a partnership, or does not, at least, entitle the plaintiff to charge the defendants as partners.

4. Where two persons, copartners, took a contract from the state to build for it a building, and one of the partners purchased material used in the construction of such building, under a contract in writing, made in his own name, with the vendor of such material, there being no understanding with the vendor that the material was furnished to the partner on his individual account, held, that the copartnership was liable for the value of the material furnished and used in the construction of said building.

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

Action on a bond by Habig & Spiler against John Layne and others. The action was dismissed except as to defendant Layne, and plaintiffs bring error. Reversed.Leese & Stewart, for plaintiffs in error.

Pound & Burr and W. E. Stewart, for defendants in error.

RAGAN, C.

On the 10th day of September, 1887, the state of Nebraska entered into a contract with John Layne and Fred W. Krone, copartners, by which the latter agreed to furnish the material and labor and construct a building for the state on the grounds of the Nebraska Institution for the Feeble-Minded Youth, near the city of Beatrice. In this contract Layne & Krone promised to pay in full all parties who should furnish any material or perform any labor for them on said building. Layne & Krone, as principals, and George Martin, M. Westover, George Sherrer, A. B. Beach, and J. E. Stockwell, as sureties, gave bond to the state conditioned that Layne & Krone would faithfully perform all the stipulations of their contract. The plaintiffs in error, Habig & Spiler, brought this suit against Layne & Krone and the sureties on their bond, alleging the copartnership of Layne & Krone; the contract between them and the state for the erection of said building; their giving bond to pay for materials furnished and used by them in carrying out their contract with the state; that on December 8, 1887, plaintiffs in error entered into a written contract with John Layne, of the firm of Layne & Krone; that said contract was by Layne made for and on behalf of Layne & Krone; that, by the terms of such contract, plaintiffs in error, for the consideration of $______, agreed to furnish the labor and material, and construct the galvanized iron cornice, tin roofing, down spouts, patent shingle roof, ridging tunnels, tower, and porch roofs, on the new addition to the building for the feeble-minded about to be erected by the state at Beatrice; that they complied with their contract; and that a balance remained due thereon.

The only issue of fact tendered by the answer of the defendants was whether the contract between plaintiffs in error and John Layne was made for and on behalf of Layne & Krone, or on Layne's personal account. The evidence shows that, at the date of the contract, Habig & Spiler lived in Beatrice, and Layne & Krone in Lincoln, and that they were unacquainted. That plaintiffs in error, learning that Layne & Krone had been awarded the contract for the construction of the building for the use of the feeble-minded, sent a bid to Layne & Krone, at Lincoln, for the galvanized iron, cornice work, etc., having first figured their bid from the plans and specifications prepared for such building. That, some weeks afterwards, John Layne was in Beatrice, and met Habig, one of the plaintiffs in error, who asked Layne if the bid of Habig & Spiler was low enough, to which Layne replied, “No;” that they, Habig & Spiler, would have to do a little better, and offered to accept a bid from them at $_____, which plaintiffs in error then and there accepted. Layne then told Habig to draw up a contract between John Layne and Habig & Spiler, and it would be all right. Habig then drew the contract sued on...