Latenser v. Misner

• Decision Date: 20 October 1898
• Citation: 56 Neb. 340,76 N.W. 897
• Parties: LATENSER v. MISNER.
• Court: Nebraska Supreme Court

56 Neb. 340

76 N.W. 897

LATENSER

v.MISNER.

Supreme Court of Nebraska.

Oct. 20, 1898.

Syllabus by the Court.

1. A petition may be attacked at any stage of the proceedings on the ground of its insufficiency in statement of a cause of action.

2. Where such an attack on the pleading is delayed until in this court on appeal, it will be liberally construed.

3. A written contract, the meaning of which is certain and patent from its terms, may not be varied by direct explanation or interpretation in oral testimony.

4. If the meaning of a written contract is not entirely free from ambiguity or obscurity, or it may be capable of two constructions, acts of the parties to it during and in its performance, and other circumstances which tend to an exposition of its true import, or to show the construction which such parties have placed upon it, are admissible; and its interpretation in the light of such facts and testimony may be committed to the jury, under proper instructions from the court.

Error to district court, Douglas county; Keysor, Judge.

Action by Walter T. Misner against John Latenser. From a judgment for plaintiff in the district court on appeal from the county court, defendant brings error. Reversed.Ed. P. Smith and James B. Sheean, for plaintiff in error.

E. W. Simeral and Wm. Simeral, for defendant in error.

HARRISON, C. J.

This action was commenced by the defendant in error in the county court of Douglas county, and from the judgment rendered an appeal was taken to the district court, wherein of the pleadings there was an amended petition, in which the cause of action was stated as follows: “Comes now the said plaintiff, and shows to the court that the said defendant is indebted to him in the sum of $396, with interest thereon from the 1st day of April, 1893, due for work and labor as a clerk under a written agreement entered into between this plaintiff and defendant, whereby said defendant agreed to employ this plaintiff for the period of one year from the 4th day of April, 1892, to the 4th day of April, 1893, a copy of which said agreement is attached to this petition, and made a part hereof.” Exhibit A is as follows: “Exhibit A. April 1st, 1892. Between Misner and Latenser. Engagement by the year. $150.00 for 6 months. $125.00 for second 6 months. John Latenser.” In the answer it was pleaded that: “Defendant admits that he employed the plaintiff to work for him as a clerk, which verbal contract was not to be performed within one year from the making thereof, and was conditioned upon the defendant having work for the plaintiff to perform; that the plaintiff was to be compensated for his services so rendered at the rate of $150 for the first six months, and $125 for the second six months;” and further that the defendant in error had been paid in full for all labor performed...