Martin v. Connell
| Decision Date | 01 July 1902 |
| Citation | 3 Neb. [Unof.] 240,91 N.W. 516 |
| Parties | MARTIN v. CONNELL. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Commissioners' opinion. Department No. 1. Error to district court, Dixon county; Graves, Judge.
“Not to be officially reported.”
Action by O. E. Martin against Richard Connell. Judgment for defendant, and plaintiff brings error. Affirmed.A. A. Welch and O. E. Martin, for plaintiff in error.
E. J. Clements and Kingsbury & McMaster, for defendant in error.
This was an action originally brought by one B. E. Fields in justice court of Dixon county to recover upon two promissory notes. Pending the action in justice court the present plaintiff, O. E. Martin, was substituted for Fields, on the ground that the notes in question had been since the action was commenced assigned to Martin. On a judgment for the defendant an appeal was taken to the district court, where another judgment was rendered against the plaintiff, who now brings error to this court. Complaint is made of the sustaining of objections to evidence.
The first is upon the question, “To whom is the money due on said second cause of action and note described therein?” This was excluded by the court. It seems unnecessary to discuss this complaint further. The answer called for was surely a general conclusion as to the merits of that cause of action. That conclusion was for the jury to draw from all the facts, not from plaintiff's mere statement.
It is next complained that objection was sustained to the question, “How is that contract called?” and the answer, “Contract order,” excluded. In this there was no prejudicial error on the part of the trial court. There were two issues in the case,--one whether or not the plaintiff owned the notes, and the other whether or not the original owner had made a contract to supply to the maker of the notes trees to enable him to secure a living orchard on his farm. Failure to do this was the affirmative defense. The notes were admitted. The question was not material to either of these issues.
The same immateriality seems to pervade all the questions asked of the witness Fields which were excluded. They seem to have no bearing upon the ownership of the notes or upon the question of damages under the alleged agreement to furnish an orchard.
It is complained that the court erred in refusing the third instruction requested by the plaintiff, as follows: “The jury are instructed that it is a rule of law that a person dealing with one known to be an agent, or claiming to be such, is bound, at his peril, to see that the agent has authority to bind his principal in such transaction, or that the agent is acting within the scope of his apparent authority.” This does not seem to have been error on the part of the trial court. Whatever authority the selling agent had to agree to replace trees till a living orchard should be obtained, if the notes were obtained, as was alleged, in consideration of such a contract, its total failure could be shown in an action upon them.
Plaintiff is also complaining as to the giving of the sixth instruction. This simply told the jury that, to entitle the plaintiff to recover, he must show himself, by the preponderance of the evidence, to be the owner of the notes. This...
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