Rector v. Canfield

• Decision Date: 15 May 1894
• Citation: 40 Neb. 595,58 N.W. 1131
• Parties: RECTOR v. CANFIELD.
• Court: Nebraska Supreme Court

40 Neb. 595

58 N.W. 1131

RECTOR

v.CANFIELD.

Supreme Court of Nebraska.

May 15, 1894.

Syllabus by the Court.

1. Where there is sufficient evidence to justify a verdict, it will not be disturbed merely because of the comparative number of witnesses on each side, or on account of mere probabilities as to the comparative weight of the testimony, considered alone, on the record in this court.

2. To a review of alleged errors in giving or refusing an instruction an exception is indispensably a prerequisite.

Error to district court, Douglas county; Doane, Judge.

Action by George A. Canfield against Allen T. Rector. Judgment for plaintiff, and defendant brings error. Affirmed.J. Fawcett, F. M. Sturdevant, and A. S. Churchill, for plaintiff in error.

C. A. Baldwin, for defendant in error.

RYAN, C.

While it is possible that counsel for plaintiff in error may have gone outside the record for some of the facts, their epitome of the pleadings and facts involved will sufficiently answer our purpose. In their brief, counsel say: “The pleadings in the case show that some time in December, 1888, or January, 1889, the defendant Miller and the plaintiff Canfield made a trade, Canfield trading off his interest in the furniture of an hotel in Omaha, known as the Canfield House, Miller agreeing to give in exchange therefor the lots in controversy in this case. At the time of the trade Miller was constructing some small dwellings on these two lots, and it seems the agreement was that he was to go on and complete the dwellings, and mortgage the lots for $1,000, and then convey them, subject to this mortgage of $1,000, to Canfield. Canfield delivered possession of the hotel to Miller, and Miller executed to Canfield the bond sued on in this case, with the defendant Rector as surety thereon. Shortly after this Miller conveyed the property to some one else, and skipped the country between two days, leaving Canfield and defendant Rector in the lurch on this deal. Demand was made upon Rector to pay the penal sum of the bond, which he declined to do, for the reason, as stated in his answer, that Canfield had not been damaged to exceed the sum of $600. The court below held properly that the measure of damages in this case was the value of the property which Miller failed to convey to Canfield at the time he should have conveyed it.”

In reference to the value of the property which Miller failed to convey to Canfield, the testimony was conflicting, and, in support...