Humpert v. McGavock

• Decision Date: 06 December 1899
• Citation: 59 Neb. 346,80 N.W. 1038
• Parties: HUMPERT v. MCGAVOCK ET AL.
• Court: Nebraska Supreme Court

59 Neb. 346

80 N.W. 1038

HUMPERT

v.MCGAVOCK ET AL.

Supreme Court of Nebraska.

Dec. 6, 1899.

Syllabus by the Court.

1. Rulings of the trial court in the admission or rejection of testimony are not reviewable in the appellate court, where the attention of the trial court was not challenged thereto in the motion for a new trial.

2. Instructions to which no exceptions were taken at the time they were given to the jury are not reviewable in this court.

3. This court will not review the evidence to ascertain whether it is sufficient to support the verdict, when the question is not raised by the assignments contained in the petition in error.

4. Assignments of error not argued at the bar or in the briefs filed are waived.

Error to district court, Douglas county; Scott, Judge.

Action by Frank H. Humpert against Alexander McGavock and Leopold Dall. Judgment for defendants, and plaintiff brings error. Affirmed.John T. Cathers, for plaintiff in error.

Francis A. Brogan and Guy R. C. Read, for defendants in error.

NORVAL, J.

One Oliver Davis was awarded the contract for the grading of certain streets in the city of South Omaha, and he entered into a written contract for the performance of the work in the manner and time agreed upon between the city authorities and himself. The contract purports to have been signed by Leopold Dall and Alexander McGavock, as parties of the third part. The contract contained the following stipulations: “Said parties of the third part hereby guaranty that the said party of the second part will well and truly perform the covenants hereinbefore contained to pay all laborers employed on said work, and, if said laborers are not paid in full by said party of the second part [[[Davis], that the said party of the third part hereby agrees to pay for said labor, or any part thereof, which shall not be paid by said second party within ten days after the money for such labor becomes due and payable, and this shall entitle any and all laborers, performing labor on the improvements to be done under the contract, to sue and recover from said third parties, or either of them, the amount due or unpaid to them, or either of them, by said second party; but said third party shall not be liable on this guaranty, on account of said labor, beyond $15,000, the estimate cost of labor on said work.” Davis did the grading in question, employing numerous men in the performance of the work. He paid the laborers for a portion of the time they were in his employment, and issued to them time checks for the remainder, which were sold by the men, but were not redeemed or paid by Davis. Some of these time checks were purchased by Frank Humpert, who brought an action on the contract against Dall and McGavock to secure the amount due and unpaid the laborers whose time checks had been transferred and assigned to him. The answer put in issue the material averments of the petition, and several other defenses were also pleaded, which were controverted by the reply. A verdict for the defendants was returned under the direction of the court, upon which judgment was subsequently entered. Plaintiff, being dissatisfied with the outcome of the trial, has brought the record of the cause to this court for review.

The plaintiff offered as evidence Exhibits 2-145, which, on motion of defendants, were excluded by the court below, and the ruling is now assailed. Whether those exhibits were or were not erroneously excluded from the consideration of the jury cannot now be adjudicated, for the reason no complaint of the ruling or decision was made in...