Jacob N. & Co. v. Angelo

• Decision Date: 21 December 1906
• Citation: 75 Neb. 373,110 N.W. 570
• Court: Nebraska Supreme Court
• Parties: JACOB NORTH & CO. ET AL. v. ANGELO.

75 Neb. 373

110 N.W. 570

JACOB NORTH & CO. ET AL.

v.ANGELO.

Supreme Court of Nebraska.

Dec. 21, 1906.

Syllabus by the Court.

A case must be tried in the district court upon appeal upon the issues tried in the lower court. This does not mean that no issuable fact can be pleaded in a petition in the district court that was not alleged in the bill of particulars in the lower court. If the identity of the cause of action is preserved in the petition, it is sufficient.

A party is not prohibited from testifying by section 329 of the Code of Civil Procedure, unless his adversary represents a deceased person in the issue that is being tried.

Error to District Court, Lancaster County; Cornish, Judge.

Action by Eva Angelo against Jacob North & Co. and others. Judgment for plaintiff. Defendants bring error. Affirmed.Wilson & Brown, for plaintiffs in error.

T. J. Doyle, for defendant in error.

SEDGWICK, C. J.

The bill of particulars in the justice court and the amended petition in the district court are set out in full in the former opinion. 105 N. W. 1089. The judgment of the district court was reversed because it was thought that the amended petition contained allegations which amounted to a change of the issues from those presented in the justice court. After the plaintiff had made a written contract with the copartnership that was then doing business under the name of Jacob North & Co., and was composed of Jacob North, Sr., and Jacob H. North, one of the members of the copartnership died, and a few weeks later his widow, who was legatee under his will, was substituted in his place in the copartnership, and the business continued under the same name. The action was brought against Jacob North & Co., but the firm at that time was composed of Jacob H. North, one of the original copartners, and Hannah North, who had been substituted,as before stated, in the copartnership for the deceased member thereof. Nothing was said in the bill of particulars as to the individual membership of the firm, except that it was alleged that Jacob North, Sr., was at the time the contract was made president and manager of the copartnership and acted for the copartnership in making the contract. The amendment which constituted the supposed change of issue consisted of the allegation: “That after the death of said Jacob North, Sr., the business of said copartnership was still continued in the name of Jacob North & Co. That Hannah North, devisee in his will, was substituted in said partnership for the said Jacob North, and said new partnership still continued said enterprise of gathering and procuring data for said history and orders for the same. That soon after the death of said Jacob North, Sr., this plaintiff called upon said new copartnership of Jacob North & Co.; and said new copartnership of Jacob North & Co., the defendants herein, with a full knowledge of the terms and conditions of the contract executed by the old firm of Jacob North & Co. to this plaintiff, accepted and adopted the terms of said contract, and promised and agreed to and with this plaintiff, in consideration of this plaintiff continuing in said work with said defendant, the new copartnership of Jacob North & Co. would pay to this plaintiff all moneys earned by her in the performance of said work, and for future services which she might render would pay to her $7.50 for each order procured for said history, or each history for which she obtained an order, and would pay to her $7.50 for each order she had procured and 10 per cent. commission on all moneys collected by her on orders given for said history, which was accepted by the plaintiff, and by reason thereof, and relying thereon, she continued in said services in the performance of said work.” Did this constitute such a change of plaintiff's cause of action as to require her petition to be stricken from the files for that reason? The plaintiff sued to recover for services rendered to the copartnership of Jacob North & Co. After the death of Jacob North, Sr., the business of the copartnership continued to be conducted by the surviving partner in the same name for three or four weeks, whereupon the widow and legatee of the deceased partner became a member of the firm in place of the deceased, and, without any change in the name of the firm, the same business was carried on in the same way. It would appear from the record that the new partner by the terms of the will succeeded to all of the rights of the deceased partner in the business. The contract that the plaintiff had entered into with the firm before this change in its membership was being carried out by the parties at the time of the death of the senior North, and was continued after Mrs. North became a member of the partnership in the room of her deceased husband. The action was brought against the copartnership in the name which it has always borne, and has continued against that defendant in that name. The plaintiff did not rely...