Lexington Mill & Elevator Co. v. Neuens
| Court | Supreme Court of Nebraska |
| Citation | 60 N.W. 893,42 Neb. 649 |
| Decision Date | 08 November 1894 |
| Parties | LEXINGTON MILL & ELEVATOR CO. v. NEUENS. |
42 Neb. 649
60 N.W. 893
LEXINGTON MILL & ELEVATOR CO.
v.
NEUENS.
Supreme Court of Nebraska.
Nov. 8, 1894.
If a person has advanced money in part performance of a contract and then refuses to proceed, the other party being ready and willing to perform on his part all the stipulations of the agreement, the former will not be permitted to recover back what he has advanced. Walter v. Reed, 52 N. W. 682, 34 Neb. 534, followed.
Error to district court, Dawson county; Holcomb, Judge.
Action by the Lexington Mill & Elevator Company against Henry Neuens for breach of a contract to deliver 900 bushels of wheat, sold by defendant to plaintiff on part payment of the purchase money. Defendant had judgment, and plaintiff brings error. Affirmed.
[60 N.W. 893]
C. W. McNamar, for plaintiff in error.
E. A. Cook, for defendant in error.
IRVINE, C.
The plaintiff in error sued the defendant in error to recover damages for the alleged failure by the defendant to deliver 900 bushels of wheat contracted to be sold by the defendant to the plaintiff. The defendant by answer admitted the contract for the sale of the wheat, but alleged its terms to be somewhat different from those stated in the petition. He then averred that he offered to deliver the wheat, and the plaintiff refused to accept the same, and asked damages on account of plaintiff's alleged breach of the contract. There was a trial to a jury and a verdict for the defendant, without damages. The court gave the following instruction: “If from the evidence you believe that the defendant was ready and willing, and offered, to deliver to the plaintiff the nine hundred bushels of wheat contracted for November 9, 1889, of like kind and quality as the sample shown plaintiff's agents, Jonsen and Leflang, and that the plaintiff, by its agents, refused to accept the same, then plaintiff cannot recover. Your verdict should be for the defendant.” The giving of this instruction is the first error assigned, the objection urged being that the instruction was not applicable to the evidence. The controversy on the trial turned upon the question whether the wheat tendered by the defendant was of the quality which he contracted to sell. The defendant received from the plaintiff $100 on the purchase money when the contract was made. We understand the point made by the plaintiff in regard to the instruction to be that it authorized a verdict for the defendant in case the jury should find that he offered to deliver...
To continue reading
Request your trial
-
Hale v. Sheehan
...fall to the ground. Reynolds v. Railroad Co., 11 Neb. 186, 7 N. W. 737;Walter v. Reed, 34 Neb. 544, 52 N. W. 682;Elevator Co. v. Neuens, 42 Neb. 649, 60 N. W. 893; Railroad Co. v. Cochran, 42 Neb. 531, 60 N. W. 894. It is urged that the seventh and eighth instructions given by the court on ......
-
Fire Ass'n of Phila. v. Ruby
...bill of exceptions.” It is true this was held insufficient, the court considering the case analogous to Scott v. Spencer, 42 Neb. 632, 60 N. W. 893. But in that case the stipulation was that “the bill of exceptions may be settled by the clerk,” with nothing whatever to show that any particu......
-
Trauerman v. Neb. Land & Feeding Co., No. 16,156.
...of the case was that announced in Walter Bros. v. Reed & Gerard, 34 Neb. 544, 52 N. W. 682, and Lexington Mill & Elevator Co. v. Neuens, 42 Neb. 649, 60 N. W. 893. It was pointed out in the opinion that in those cases the purchaser had absolutely refused to proceed further in performance of......
-
Chi., B. & Q. R. Co. v. Cochran
...the same principle is recognized in Walter v. Reed, 34 Neb. 544, 52 N. W. 682, and Elevator Co. v. Neuens (decided at the present term) 60 N. W. 893. The irresistible conclusion from the evidence is that the plaintiff below was guilty of the first breach of the contract, and that his defaul......
-
Hale v. Sheehan
...fall to the ground. Reynolds v. Railroad Co., 11 Neb. 186, 7 N. W. 737;Walter v. Reed, 34 Neb. 544, 52 N. W. 682;Elevator Co. v. Neuens, 42 Neb. 649, 60 N. W. 893; Railroad Co. v. Cochran, 42 Neb. 531, 60 N. W. 894. It is urged that the seventh and eighth instructions given by the court on ......
-
Fire Ass'n of Phila. v. Ruby
...bill of exceptions.” It is true this was held insufficient, the court considering the case analogous to Scott v. Spencer, 42 Neb. 632, 60 N. W. 893. But in that case the stipulation was that “the bill of exceptions may be settled by the clerk,” with nothing whatever to show that any particu......
-
Trauerman v. Neb. Land & Feeding Co., No. 16,156.
...of the case was that announced in Walter Bros. v. Reed & Gerard, 34 Neb. 544, 52 N. W. 682, and Lexington Mill & Elevator Co. v. Neuens, 42 Neb. 649, 60 N. W. 893. It was pointed out in the opinion that in those cases the purchaser had absolutely refused to proceed further in performance of......
-
Chi., B. & Q. R. Co. v. Cochran
...the same principle is recognized in Walter v. Reed, 34 Neb. 544, 52 N. W. 682, and Elevator Co. v. Neuens (decided at the present term) 60 N. W. 893. The irresistible conclusion from the evidence is that the plaintiff below was guilty of the first breach of the contract, and that his defaul......