Lininger & Metcalf Company v. Webb

• Court: Nebraska Supreme Court
• Writing for the Court: HARRISON, J.
• Citation: Lininger & Metcalf Company v. Webb, 70 N.W. 519, 51 Neb. 10 (Neb. 1897)
• Decision Date: 17 March 1897
• Docket Number: 7153
• Parties: LININGER & METCALF COMPANY v. GEORGE E. WEBB ET AL

70 N.W. 519

51 Neb. 10

LININGER & METCALF COMPANY v. GEORGE E. WEBB ET AL

No. 7153

Supreme Court of Nebraska

March 17, 1897

ERROR from the district court of Johnson county. Tried below before BABCOCK, J. Affirmed.

AFFIRMED.

S. P Davidson, for plaintiff in error.

T Appelget, contra.

OPINION

HARRISON, J.

The plaintiff commenced this action in the district court of Johnson county to recover certain sums alleged to be due it from the defendants under and by virtue of a written contract entered into by and between the plaintiff and George E. Webb of defendants, whereby the last named party became the agent of the plaintiff for the sale of articles of merchandise in which it was dealing. The amounts were alleged to be due plaintiff by reason of the alleged failure of the agent to fulfill in certain particulars the conditions of the contract of agency. The liability of J. G. Cowden, of defendants, was predicated upon the following agreement, which appeared on the back of the contract of agency:

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

The portions of the petition in which the causes of action specifically appear are as follows:

"Plaintiff further avers that under and in pursuance of said contract said G. E. Webb began business as the agent of the plaintiff for the sale of plaintiff's goods, wares, and merchandise at Tecumseh, Nebraska, and that as such agent he received a large amount of goods, wares, and merchandise from said plaintiff, which were shipped to him at Tecumseh; that he sold goods from time to time under and in pursuance of said contract, but plaintiff avers that many of the notes which said George E. Webb, as such agent, took for said sales, instead of being given by good responsible parties, as provided by said contract, were signed by parties who were financially worthless, and that said notes remained wholly uncollectible.

"Plaintiff further avers that among said notes that are wholly uncollectible, and which have not been collected, is one signed by Charles Hollburg, dated November 30, 1889, due March 1, 1890, bearing ten per cent interest, for $ 8; also a note signed by J. R. Peak, dated October 15, 1889, due April 15, 1890, for $ 39, bearing interest from its date at ten per cent per annum; also a note signed by G. H. Greer, dated February 1, 1890, for $ 60, bearing interest at ten per cent per annum from its date; also one note signed by C. J. Ferguson, dated January 29, 1890, due April 1, 1890, for $ 20.50, bearing interest from its date at ten per cent per annum. All said notes, though long since due, have not been paid, and the same are entirely uncollectible from the makers thereof, as said makers are each and all financially worthless, and there is now due plaintiff from said defendants, in and by virtue of said contract and the guaranty indorsed thereon, the sum of two hundred and twenty-two and nine-100 dollars, and interest thereon from November 19, 1892, at ten per cent per annum.

"As a second and further cause of action, this plaintiff further alleges that said defendants are indebted to said plaintiff, under the provisions of said contract and the guaranty thereon indorsed, in the sum of $ 7.20, paid by the plaintiff for the collection of the note taken by the said Webb in pursuance of said contract against one Myron Yates, indorsed by said Webb. Said collection was made on the 3d day of June, 1891.

"As a third cause of action, plaintiff further avers that said defendants are indebted to plaintiff in the further sum of two hundred and one 55-100 dollars, being for attorney's fees, costs, and expenses incurred by the plaintiffs in prosecuting a replevin suit against the sheriff of Johnson county, Nebraska, which suit was made necessary by reason of the goods, wares, and merchandise belonging to the plaintiff, in charge of said Webb as said agent, having been attached at the suit of the creditors of said Webb. That said suit was occasioned and made necessary by the failure of said Webb to comply with his contract and his failure to keep the goods, wares, and merchandise belonging to the plaintiff separate from the goods, wares, and merchandise belonging to said Webb."

The contract, which is made a part of the petition, is quite lengthy and we will not quote it here. This same contract was involved in litigation in the case of Shaughnessy v. Lininger, before this court on error from the district court of Johnson county, and in the opinion therein, reported in 34 Neb. 747, the contract was set out in full, to which we now refer the reader here for the precise terms of the contract. Answers and replies were filed, in which issues were joined, of which there was a trial. The jury to which the cause was submitted returned the following verdict: "We, the jury in this case, being duly impaneled and sworn, do find for the plaintiffs and assess their damages against defendant Cowden at the sum of $ 20.05-100 (twenty dollars and five cents), and against Webb for the sum of $ 171.80-100 (one hundred and seventy-one dollars and eighty cents)." From a judgment in accordance with the verdict the plaintiff has prosecuted error proceedings to this court.

One assignment of error which is urged in the argument was directed against the action of the trial court in its modification of an instruction asked by counsel for plaintiff. This instruction was as follows: "The court instructs the jury that if the notes mentioned in the first cause of action in the plaintiff's petition were indorsed and turned over to the...