Lininger & Metcalf Co. v. Wheat

• Decision Date: 05 November 1896
• Docket Number: 6881
• Citation: Lininger & Metcalf Co. v. Wheat, 49 Neb. 567, 68 N.W. 941 (Neb. 1896)
• Parties: LININGER & METCALF COMPANY v. GEORGE T. WHEAT
• Court: Nebraska Supreme Court

68 N.W. 941

49 Neb. 567

LININGER & METCALF COMPANY v. GEORGE T. WHEAT

No. 6881

Supreme Court of Nebraska

November 5, 1896

ERROR from the district court of Adams county. Tried below before BEALL, J.

REVERSED AND REMANDED.

Smith & McCreary, for plaintiff in error.

Capps & Stevens, contra.

OPINION

RYAN C. J.

This action was brought in the county court of Adams county by the plaintiff in error April 20, 1893. From a judgment for the sum of $ 391.70 the defendant appealed to the district court wherein judgment was rendered on the verdict of a jury in his favor.

On the 12th day of February, 1892, plaintiff, Lininger & Metcalf Company, entered into a written agreement with W. H Shellhammer whereby Mr. Shellhammer was appointed its agent for the sale of certain of its goods at Holstein and Norman. Among other undertakings of this agent under his agreement he was to be liable to the company for any damages that goods might sustain by reason of not being properly stored. It was also stipulated in the agreement that for such goods as should not have been ordered away and remained unsold on January 1, 1893, Mr. Shellhammer was to be liable to pay the cash value, if so required by the company. This action was for the balance alleged to be due under the above provisions and was brought against the defendant in error on this his guaranty, which was indorsed on the aforesaid written agreement:

"GUARANTY.

"For value received the undersigned does hereby guaranty the faithful and full performance by the party of the second part to this contract of all the agreements and engagement therein entered into by the said party of the second part.

"Witness--hand and seal the day and date within written. GEORGE T. WHEAT."

On the trial there was introduced as evidence on behalf of Mr. Wheat a stipulation entitled as in this case and dated and filed October 11, 1893. It was in this language: "It is hereby stipulated and agreed by and between the parties hereto that there was due on January 1, 1893, from W. H. Shellhammer to the Lininger & Metcalf Company, this plaintiff, under the terms of the contract set out in plaintiff's petition herein, the sum of three hundred and ninety-one and .70 dollars ($ 391.70), no part of which has been paid, and all of which is now due." It is by this stipulation rendered unnecessary that the evidence showing what was due from Shellhammer should be discussed. That was admitted, in so far as Mr. Wheat was concerned, by this stipulation. The defenses in...