Mizer v. Bristol

• Decision Date: 08 July 1890
• Citation: 46 N.W. 293,30 Neb. 138
• Parties: MIZER v. BRISTOL.
• Court: Nebraska Supreme Court

30 Neb. 138

46 N.W. 293

MIZER

v.BRISTOL.

Supreme Court of Nebraska.

July 8, 1890.

Syllabus by the Court.

1. Evidence examined, and held to sustain the verdict.

2. Where, upon the issues joined, the plaintiff is required to introduce any evidence in support of his case, he will be entitled to open and close.

Error to district court, Webster county; GASLIN, Judge.J. N. Rickards, for plaintiff in error.

Case & McNeny, for defendant in error.

MAXWELL, J.

This action was brought by the defendant against the plaintiff to recover the sum of $500 for money had and received; and on the trial of the cause the jury returned a verdict in his favor for the sum of $225, upon which judgment was rendered. The plaintiff in error, in his answer, alleges that “the money mentioned and described in plaintiff's petition was received by defendant from plaintiff under the following state of facts, to-wit: On the 2d day of December, 1886, plaintiff and defendant entered into a certain written agreement, by the terms of which this plaintiff was to purchase of defendant, and defendant was to sell to plaintiff, his entire stock of queen's-ware, groceries, provisions, and fixtures; and further, the said plaintiff was to rent of said defendant the store-room and cellar situate on lot nine of block five, Red Cloud, Neb., at an annual rent of $800 per year, payable in monthly installments of $66.67 per month. A true copy of said written agreement is here with filed, attached to this answer, and made a part hereof. That in pursuance of said agreement the plaintiff, at the completion of said agreement, paid to defendant the $500 as a part payment for said stock of goods, and in no other manner, and thereafter, and on or about the ______ day of December, and about the time the invoice mentioned in said contract was nearly completed, the plaintiff, without any just cause, and without any fault on the part of this defendant, voluntarily abandoned said agreement, and refused to further proceed under the same, and refused to accept said goods, and pay the balance due therefor, as per the terms of said agreement. This defendant did, and performed all the terms and conditions to be done and performed by him under said agreement, and at the time of the breach aforesaid was ready and willing to fully perform his part of said agreement. This defendant, by reason of the plaintiff's failure, neglect, and refusal to perform said agreement, has sustained damages in the sum of $1,000 over and above the amount so received. The same is now due, and wholly unpaid.” The reply need not be noticed.

The contract referred to is as follows: “This agreement, entered into by and between Benjamin F. Mizer, of the first part, and Charles H. Bristol, of the 2nd part, both of Red Cloud, Nebraska, witnesseth: The said Mizer agrees on his part to sell and convey to said Bristol, free and clear of incumbrance, his entire stock of groceries, queens'-ware, produce, and fixtures now owned by him, and kept in storerooms and cellars situate on lot nine of block five of Red Cloud, Nebraska. The said Bristol agrees, on his part, to purchase said goods, and take the same, as follows: queen's-ware and groceries to be taken at invoice, and to be invoiced at first cost thereof; and, in addition...