Ripp v. Hale

• Decision Date: 21 June 1895
• Docket Number: 6201
• Parties: JACOB RIPP v. DAVID A. HALE
• Court: Nebraska Supreme Court

64 N.W. 454

45 Neb. 567

JACOB RIPP v. DAVID A. HALE

No. 6201

Supreme Court of Nebraska

June 21, 1895

ERROR from the district court of Platte county. Tried below before MARSHALL, J.

AFFIRMED.

Albert & Reeder, for plaintiff in error.

Robinson & Reed, contra.

HARRISON J. POST, J., not sitting.

OPINION

HARRISON, J.

This case was commenced in the district court of Platte county by D. A. Hale to recover from Jacob Ripp the amount of a subscription alleged to have been made by him in favor of one Henry Gebecke and assigned to D. A. Hale. The case was tried before the court and a jury, and at the close of the testimony a verdict was directed for the defendant. The case was brought to this court for review and the judgment reversed and the case remanded. The decision then filed is reported in 32 Neb. 259, and to it we refer for a statement of the cause of action. It was then held: "That the questions of fact involved in the case should have been submitted to the jury, and the court erred in directing a verdict. Where a party makes a promise to another for the benefit of a third person, such third person may avail himself of the promise and bring an action thereon, although the consideration did not move directly from him." At a second trial of the case in the district court, by agreement of parties the cause was submitted upon the evidence taken during the former trial, no new evidence being offered by either party, the only change made being, that on objection by plaintiff, "Exhibit E," page 367 of the deed record, a copy of a deed from plaintiff and wife to the Fremont, Elkhorn & Missouri Valley Railroad Company, conveying to it some seven acres of the land deeded by Gebecke to Hale as agent for the company and which had been admitted at the former trial, was at the time excluded. There was a verdict by the jury in favor of the plaintiff, and after motion for new trial on behalf of defendant was heard and overruled, judgment was rendered in accordance therewith. To review the proceedings during the second trial the case is again presented to this court.

The district court in the second trial of the case obeyed the direction of this court as embodied in its opinion rendered at the former hearing, and its action in so doing was the only correct and proper one, and in so far as the former adjudication of the case in this court related to the facts developed during the trial, and their sufficiency to require a submission of the issues to the jury for their consideration and determination, it will not now be re-examined but will be adhered to. The rule of law which was announced in the...