Johnston v. Spencer
| Decision Date | 21 April 1897 |
| Citation | 51 Neb. 198,70 N.W. 982 |
| Parties | JOHNSTON ET AL. v. SPENCER. |
| Court | Nebraska Supreme Court |
1. In a charge of fraud and misrepresentation, the facts showing such fraud and misrepresentation must be pleaded; but this does not require that the probative or evidential facts shall be stated. It is sufficient if ultimate facts are alleged, which show the falsity of the representations.
2. Where an objection that a petition does not state a cause of action is interposed for the first time during the trial of a cause or after verdict, the pleading must be liberally construed, and, if possible, sustained.
3. “When a witness is cross-examined on a matter collateral to the issue, he cannot, as to his answer, be subsequently contradicted by the party putting the question.”
4. “The test of whether a fact inquired of in cross-examination is collateral is, would the cross-examining party be entitled to prove it as a part of his case tending to establish his plea?” George v. State, 20 N. W. 311, 16 Neb. 318, approved and followed.
Error to district court, Lancaster county; Strode, Judge.
Action by Elmer E. Spencer against John R. Johnston and another. From a judgment for plaintiff, defendants bring error. Reversed.Chas. O. Whedon and Chas. Offutt, for plaintiffs in error.
F. I. Foss, E. E. McGintie, and W. R. Matson, for defendant in error.
The defendant in error sued the plaintiffs in error in the district court of Lancaster county to recover an amount alleged to be his due from them as damages which accrued through a sale to him of shares of stock of the Globe Publishing Company at Crete, induced by the false and fraudulent representations of the plaintiffs in error. Issues were joined, of which a trial resulted in a verdict and judgment favorable to defendant in error. To secure a review of the proceedings during the trial in the district court, the case has been presented to this court. After verdict in the proceedings, a motion was interposed for plaintiffs in error asking for judgment in their favor notwithstanding the verdict for the other parties, on the grounds that under the pleadings they were entitled thereto. This was denied, which, it was assigned, was error. In section 440 of the Civil Code it is provided: “Where, upon the statements in the pleadings, one party is entitled by law to judgment in his favor, judgment shall be so rendered by the court, though a verdict has been found against such party.” This provides a remedy substantially the judgment non obstante veredicto of the common law. Manning v. City of Orleans, 42 Neb. 712, 60 N. W. 953. That the shares of stock were purchased by the plaintiff was established beyond question by the pleadings, and the main issuable fact was that of the practice of fraud and deceit by plaintiffs in error in the negotiations which culminated in such sale, the other questions being incidental thereto and connected therewith. The petition contained a statement of the allegations alleged to have been made by plaintiffs in error to influence the defendant in error to purchase the shares. This was followed by other and further statements in reference to the representations made, purposed, by the pleader, to negative the truth of the alleged representations, and show them to have been false. It is argued that there was not sufficient statement of facts in the petition in negation of the truth of the alleged representations and showing their falsity. It is a rule of pleading that in pleading a charge of fraud and misrepresentation the facts must be stated, and not mere conclusions. Arnold v. Baker, 6 Neb. 134; Clark v. Dayton, Id. 192; Aultman & Taylor Co. v. Steinan, 8 Neb. 109; Tepoel v. Bank, 24 Neb. 815, 40 N. W. 415;Staley v. Housel, 35 Neb. 160, 52 N. W. 888. But it is also a rule that, where an objection that a petition does not state a cause of action is made for the first time during the trial of the action, the statements of the pleading must be liberally construed, and the petition sustained, if possible. Roberts v. Taylor, 19 Neb. 184, 27 N. W. 87;Marvin v. Weider, 31 Neb. 774, 48 N. W. 825. The rule which requires a petition in an action of the nature of the one at bar to contain a statement of facts negativing the truth of the stated representations, does not necessitate the pleading of the probative or evidential facts. It is sufficient if ultimate facts are alleged, which show the falsity of the representations. If the allegations of the petition in the case at bar be construed liberally, as the rule requires, the attack having been made during trial, they were sufficient in their statements of facts, and not mere conclusions, to establish the falsity of the material representations pleaded to have been made to defendant in error by plaintiffs in...
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State v. Matheson
...would not have been permitted to introduce in evidence as a part of his original case. Hildeburn v. Curran, 65 Pa. 59; Johnston v. Spencer, 51 Neb. 198 (70 N.W. 982); Welch v. State, supra. And of course the cannot show declarations of a third person which are against the defendant, even th......
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State v. Matheson
...would not have been permitted to introduce in evidence as a part of his original case. Hildeburn v. Curran, 65 Pa. 59;Johnston v. Spencer, 51 Neb. 198, 70 N. W. 982; Welch v. State, supra. And of course the prosecution cannot show declarations of a third person which are against the defenda......
- Johnston v. Spencer
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Ferguson v. State
...collateral to the issue, he cannot, as to his answer, be subsequently contradicted by a party putting the question. Johnston v. Spencer, 70 N. W. 982, 51 Neb. 198. 2. The test of whether a fact inquired of in cross-examination is collateral is, would the cross-examining party be entitled to......