Keeley Institute of Virginia v. Wade
| Decision Date | 20 February 1901 |
| Docket Number | 9,358 |
| Citation | 85 N.W. 288,61 Neb. 313 |
| Parties | KEELEY INSTITUTE OF VIRGINIA v. JAMES T. WADE |
| Court | Nebraska Supreme Court |
ERROR from the district court for Washington county. Tried below before SLABAUGH, J. Affirmed.
AFFIRMED.
Jesse T. Davis and Frank S. Howell, for plaintiff in error.
Walton & Mummert, F. Dolezal and W. S. Cook, contra.
The plaintiff below, James T. Wade, and the Keeley Institute of Virginia, a corporation, entered into a written contract, of date September 1, 1893, one clause of which reads as follows "The said J. T. Wade for and in consideration of thirty-six hundred dollars per year payable in equal monthly payments, agrees to take full charge of the medical and business departments of the said Keeley Institute of Virginia, to employ at his own expense at least one assistant manager and one janitor for duty at the institute." At or about the date of said contract said Wade entered upon the discharge of his duties, and so continued until some time in the fall of 1895, when the relations existing between the parties created by said contract ceased, and said Wade sued said corporation in the district court of Washington county alleging that there was due him on account of services rendered under said contract an unpaid balance of $ 728, for which sum he prayed judgment. To this petition defendant answered, alleging as defenses, among other things, that said Wade had failed to keep his contract, in this, that he had not employed an assistant manager at such institute; further that by reason of the incompetency and immoral and drunken habits of plaintiff, the business which he was employed to manage had been injured, all to the damage of defendant in the sum of $ 1,000. To this a reply, denying said allegations, was filed by plaintiff. On the trial, after all the evidence was admitted, the plaintiff moved the court to instruct the jury to return a verdict in his favor, which motion was sustained, and the court accordingly directed the jury to return a verdict for plaintiff for the sum of $ 735.94, which verdict was accordingly rendered, and for the judgment entered thereon the defendant brings the proceeding here on error, its assignments of error being: (1) The court erred in giving to the jury the instruction directing the jury to return a verdict for the plaintiff below; (2) in not submitting the question of performance of said contract; (3) in not submitting the question whether said contract had been substantially complied with; (4) in overruling the motion of defendant for a new trial.
The assignments of error present one question, which is, was there any evidence tending to show that plaintiff had not complied with his contract? A careful examination of a very long record leads the court irresistibly to the conclusion that there was absolutely no evidence which disclosed that plaintiff had not fully complied with all the terms of the contract on his part to be performed. His evidence, and that of his witnesses is to the effect that he discharged his duties, not only personally, but by employing an assistant manager and janitor, down to some time in the year 1895, when, by mutual agreement of the parties, an assistant manager was dispensed with and an itinerant lecturer was employed in his place, at a fixed salary,...
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