Harte v. Reichenberg

• Decision Date: 17 December 1902
• Citation: 3 Neb. [Unof.] 820,92 N.W. 987
• Parties: HARTE v. REICHENBERG.
• Court: Nebraska Supreme Court

3 Neb. [Unof.] 820

92 N.W. 987

HARTE

v.REICHENBERG.

Supreme Court of Nebraska.

Dec. 17, 1902.

Commissioners' opinion. Department No. 1. Error to district court, Douglas county; Keysor, Judge.

“Not to be officially reported.”

Action by Samuel Reichenberg, administrator, against Henry C. Harte. Judgment for plaintiff, and defendant brings error. Affirmed.J. L. Kaley and Harry Fischer, for plaintiff in error.

Richard S. Horton, for defendant in error.

HASTINGS, C.

This action--an appeal from probate court of Douglas county--was tried to a jury in the district court, and resulted there in a judgment for the defendant administrator. The plaintiff brings error.

Plaintiff's first cause of action is for $567.35, the 10 per cent. commission on the sale of a stock of boots and shoes for the sum of $5,673.58, which plaintiff claims to have made about September 10, 1890, for Henry Dohle, in his lifetime. The second cause of action is for the leasing of the storeroom and basement at 1419 Farnam street for three years at $200 a month, for which a commission of 5 per cent. of the entire rental, $360, is asked. The administrator's answer pleads that the action did not accrue within four years before the filing of the claim in the county court; that in 1890 Dohle owned the property in question, and continued to own the real estate until his death, in February, 1899; that on September 10, 1890, and thereafter until his death, he was a resident of Sachensberg, in the empire of Germany; that, by the statute of limitations there in force, a claim for commission is barred in two years. The answer also denied all of plaintiff's allegations. A motion to strike out so much of the answer as set up the statute of limitations was overruled. A reply was then filed admitting that the contract of employment and the performance of services were more than four years before the filing of the claim in county court, but saying that Dohle was then in Germany, and never was a resident of Nebraska, and the contract was a German one; that the statute of limitations of this state never began to run against the claim; and that it was not barred at any time by the laws of the German Empire. At the trial the district court instructed the jury that there was no competent evidence tending to prove the claim, and that a verdict should be returned in favor of the estate. A motion for new trial was filed, alleging error in this instruction, a verdict contrary to the evidence, and errors of law occurring at the trial and duly excepted to. Under this state of the record no errors are important except the alleged one in giving this instruction. Of course, however, if the trial court excluded evidence which should have been submitted to the jury's consideration, this instruction was erroneous. The claim of error in overruling the motion to strike out parts of the answer cannot be considered. It is not mentioned in the motion for new trial.

The action of the district court seems...