J. B. Alfree Manufacturing Company v. Grape

• Decision Date: 07 March 1900
• Docket Number: 9,148
• Citation: 82 N.W. 11,59 Neb. 777
• Parties: J. B. ALFREE MANUFACTURING COMPANY v. HENRY R. GRAPE
• Court: Nebraska Supreme Court

82 N.W. 11

59 Neb. 777

J. B. ALFREE MANUFACTURING COMPANY v. HENRY R. GRAPE

No. 9,148

Supreme Court of Nebraska

March 7, 1900

ERROR from the district court of Dixon county.Tried below before EVANS, J. Reversed.

REVERSED AND REMANDED.

William E. Gantt, for plaintiff in error.

J. J McCarthy, John V. Morgan, S. G. Hutchinson and John C Watson, contra, argued that the exceptions by the plaintiff in error to the instructions given by the court at the request of the defendant in error were so indefinite that they could not be considered by this court.The exception of the defendant below to plaintiff's instructions was as follows: "Instructions requested by the plaintiff and given by the judge, to all of which the defendant duly excepts."See transcript, 16.This exception was made at the commencement of the instructions, as shown by the transcript.It had long been a settled rule of this court that a general exception to the charge to the jury was unavailing, unless the entire charge was erroneous.SeeRedman v. Voss,46 Neb. 512;City of Omaha v McGavock,47 Neb. 313.Exceptions should be taken separately to instructions, and not en masse.SeeBlue Valley Lumber Co. v. Smith, 48 Neb. 293.

OPINION

HOLCOMB, J.

In the district courtthe plaintiff, defendant in error, in his petition alleged substantially that on August 3, 1891, he was desirous of erecting a cereal mill, and entered into a contract in writing with the defendant, plaintiff in error, whereby defendant agreed to furnish, set up and put into successful operation in plaintiff's mill-building the machinery necessary to the successful operation of the said cereal mill, all machinery and material to be first-class, etc. for the sum of $ 4,500, payable one-half on shipment of machinery, and the balance after six days' successful operation, provided the mill did not fail to perform the following guarantee: "We guarantee this cereal mill to have a capacity of 50 bus. per hour, and to manufacture all grades of corn goods, flake goods and buckwheat flour, equal in quality to any samples you may produce from same grade of grain."That afterwards, at the special instance and request of the defendant, and upon the express promise to pay the sum of six per cent as interest thereon, the plaintiff advanced to and paid the defendant upon the said contract price, relying on the said contract and the several promises of the defendant, the sum of $ 3,500 in cash; and while the defendant was putting in the machinery called for by the contract, the plaintiff paid and advanced to the said defendant, at his special instance and request, the further sum of $ 425 in labor, material, etc.; that the defendant did not comply with the said contract; that the machinery purchased was and is entirely worthless for the purposes specified, and will not perform the work desired and agreed upon; that the plaintiff has repeatedly demanded of the defendant that it comply with its agreement and make the machinery conform to said contract, but the defendant refuses to comply with the terms of said agreement, and refuses and neglects to conform to the same, to the damage of the plaintiff in the sum of $ 4,000, for which judgment is prayed, with interest at seven per cent from August 31, 1891, and costs of action.

The answer, after generally denying the allegations of the petition, pleads full performance of the terms of the contract, and by way of cross-petition states that there is due it, under the terms of the contract, a balance of $ 823, for which, with interest, judgment is asked.

The reply consists of a general denial.

After the issues were formed, a trial was had to the court and a jury, the jury returning a verdict for the plaintiff in the sum of $ 5,118.

The plaintiff filed a remittitur for the sum of $ 118, and judgment was rendered on the verdict for the sum of $ 5,000 and costs of suit.

The errors assigned as grounds for reversal are very numerous, being some sixty-eight in number, none of which are presented with clearness and precision, and all seemingly are regarded as equally important, special or extended consideration being given to none.An examination of the voluminous record convinces us that it is all sufficient to notice but two of the assignments of error, and these relate to the instructions of the court, and to which exceptions were properly taken and preserved in this court.

The sixth instruction given by the court on its own motion is as follows:

"The jury will first inquire if the defendant company has complied with the terms of its contract with the plaintiff, that is has there been a breach of the contract? and if you find for the plaintiff on this point you are instructed, as a matter of law, that the true rule of damages in this case is the difference between the value of the machinery furnished and what it would cost to replace the same with such as was demanded by the contract and in accordance with the terms thereof, unless you find that the plaintiff has by reason of...