Lowe v. Vaughn
| Decision Date | 20 May 1896 |
| Citation | 67 N.W. 464,48 Neb. 651 |
| Parties | LOWE v. VAUGHN. |
| Court | Nebraska Supreme Court |
1. Evidence examined, and held sufficient to sustain the verdict.
2. Where, from the deposition of a witness, it appears that he is a nonresident of the county, it is unnecessary for the party offering the deposition in evidence to prove that he is not present in court. Sells v. Haggard, 21 Neb. 357, 32 N. W. 66, followed.
3. Certain evidence examined, and held to be relevant to the issues.
4. To present for review the propriety of instructions, it is indispensable that it should appear affirmatively from the record that exceptions were taken to the giving of the instructions complained of.
Error to district court, Harlan county; Beall, Judge.
Action by Charles E. Vaughn against Elliott Lowe. Judgment for plaintiff, and defendant brings error. Affirmed.C. C. Flansburg, for plaintiff in error.
James McNeny and J. G. Thompson, for defendant in error.
This was an action by the defendant in error against the plaintiff in error to recover for certain cattle sold and delivered by the former to the latter. The chief defense was payment. A trial resulted in a verdict for the plaintiff below for $365. Judgment was rendered accordingly. It is contended that the verdict is not sustained by the evidence. It would be useless to review the evidence at length. There is a controversy between the parties as to what were the terms of the original contract of sale. Both parties agree that after the cattle had been shipped to South Omaha, and there sold, a further controversy arose in regard to the settlement, and that some arrangement was made whereby a settlement was to be effected, and Lowe gave Vaughn a check for what he computed to be the amount. Afterwards Vaughn concluded the amount had not been correctly computed. Assuming that the argument on behalf of Lowe is well founded, to the effect that there is not sufficient evidence to show that the check given was not for the proper amount in view of the settlement finally made, still there is a direct conflict as to the disposition made of this check. Vaughn testified that, after some effort to have the amount corrected, he returned the check to Lowe, and that the money was never paid him. Lowe testifies that Vaughn kept the check some time, and then Lowe took it up, paying its amount to Vaughn at the time. This conflict in the evidence forbids our disturbing the verdict.
The deposition of one Blanchard was offered in evidence, and received, over the objection of Lowe. It is contended, first, that no foundation was laid for the use of the deposition. There was no direct independent evidence that facts existed permitting the use of a deposition. But it appears from the deposition itself, as well as from the testimony of witnesses in the case, that Blanchard was a commission man, doing business and living in South Omaha. There was certainly...
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Rema v. State
... ... regard cannot be reviewed here. (Unland v. Garton, ... 48 Neb. 202, 66 N.W. 1130; Lowe v. Vaughan, 48 Neb ... 651, 67 N.W. 464.) ... Instructions ... 4, 5, 6, 7, 8, and 9, given by the court on its own motion, ... ...
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Brown v. Mulready
... ... plaintiff in the deposition which he had taken. See, also, ... German Nat. Bank of Hastings v. Leonard, 40 Neb ... 676, 59 N.W. 107; Lowe v. Vaughan, 48 Neb. 651, 67 ... N.W. 464; Carlson & Hanson v. Holm, 2 Neb. Unoff ... 38, 95 N.W. 1125; Young v. Kinney, 79 Neb. 421, 112 ... N.W ... ...
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Rema v. State
...such refusal, the action of the court in that regard cannot be reviewed here. Unland v. Garton, 48 Neb. 203, 66 N. W. 1130;Lowe v. Vaughan, 48 Neb. 651, 67 N. W. 464. Instructions 4, 5, 6, 7, 8, and 9, given by the court on its own motion, are complained of. They, having been grouped in a s......
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Elkhorn Valley Lodge, No. 57, I. O. O. F. v. Hudson
...on the sum awarded as the amount of the recovery. This of itself is fatal to defendant's contention in this respect. Lowe v. Vaughan, 48 Neb. 651, 67 N. W. 464;Costello v. Kottas, 52 Neb. 15, 71 N. W. 950. It does not appear that the money was ever brought into court, or that the defendant ......