Kennedy v. Goodman

• Decision Date: 09 October 1883
• Parties: SIMON H. KENNEDY, PLAINTIFF IN ERROR, v. CHARLES F. GOODMAN, FOR DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

16 N.W. 834

14 Neb. 585

SIMON H. KENNEDY, PLAINTIFF IN ERROR, v. CHARLES F. GOODMAN, FOR DEFENDANT IN ERROR

Supreme Court of Nebraska

October 9, 1883

ERROR to the district court for Douglas county. Tried below before SAVAGE, J.

REVERSED AND REMANDED.

Webster & Gaylord, for plaintiff in error, cited: 1 Parsons Contracts, 437. Kansas Mnfg. Co. v. Gandy, 11 Neb 450. Jarvis v. Sutton, 3 Neb. 289. Haynes v Thorn, 28 N.H. 386. Sullivan v. Collins, 18 Iowa 228. Kidder v. Blake, 45 N.H. 530. Cabot v Haskins, 3 Pick. 83.

W. J. Connell, for defendant in error.

OPINION

MAXWELL, J.

Goodman brought an action against Kennedy in the district court of Douglas county, upon three promissory notes amounting to $ 2,715.38 and an account for $ 715.13. The answer is in substance a want of consideration for the notes as follows: It is alleged in substance that Kennedy was manufacturing "Hemlock Remedies" and furnishing the same to Goodman, who furnished the ingredients and charged the same to Kennedy. That there was an open running book account between the plaintiff and defendant, and that the notes were given to cover balances as the same appeared from this book account which was kept by Goodman. On the trial of the cause a verdict was returned in favor of Goodman for the sum of $ 4,000, upon which judgment was rendered. The errors assigned in this court relate to the giving of certain instructions, which will be considered hereafter.

There is testimony tending to show that Kennedy manufactured "Hemlock Remedies" for Goodman under a contract which was to continue for three years, at the expiration of which time the contract was renewed for two years longer that Goodman furnished the ingredients, charging the same to Kennedy, and crediting him with the remedies furnished; that Goodman kept a book account showing the amount of hemlock remedies turned over to him from time to time, and charged Kennedy with all the drugs, chemicals, and other articles furnished, and also for the rent of a building used as a manufactory; that the notes were given for balances found due Goodman from time to time as appeared from said books of account; that said books contained various charges against Kennedy in the computation of cost of goods furnished, in charging him more than the price agreed upon, with freight added, and in charging him for the loss of remedies broken while in transitu, and for shrinkage, etc.; that Kennedy, although he had possession of the account books, had never had an opportunity to examine the same and ascertain their correctness, and at the time of giving the notes he was not aware of the various errors, overcharges, etc.; that the amount of said erroneous charges is the sum of $ 3,750, and an itemized account, alleged to contain the correct charges, is attached to the bill of exceptions as a part thereof. Goodman introduced evidence tending to prove that monthly statements of the account were furnished to Kennedy, and by him taken to his place of business, and that at times he and Kennedy looked over said book accounts together; that there was no agreement that he should sell drugs, chemicals, and other articles at cost, and that the prices charged were fair and reasonable, and were agreed upon by the parties; that there were no errors or overcharges in the accounts, etc. One of the instructions given to the jury is as follows: "If you find...