Sherwin v. O'Connor

• Decision Date: 10 October 1888
• Parties: SHERWIN, SHERWIN & CO., PLAINTIFFS IN ERROR, v. PATRICK W. O'CONNOR, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

39 N.W. 620

24 Neb. 603

SHERWIN, SHERWIN & CO., PLAINTIFFS IN ERROR, v. PATRICK W. O'CONNOR, DEFENDANT IN ERROR

Supreme Court of Nebraska

October 10, 1888

ERROR to the district court for Lancaster county. Tried below before POUND, J.

AFFIRMED.

J. L Caldwell, for plaintiffs in error.

Sawyer & Snell, for defendant in error.

OPINION

REESE CH. J.

This was an action to recover commissions alleged to be due from defendant in error to plaintiffs in error, as exchange brokers. Defendant was the owner of certain personal property, and one Green was the owner of real estate in Franklin county, which he had placed in the hands of plaintiffs in error for sale or exchange, and which they had advertised in the local papers. Defendant seeing their advertisement approached them at their office for an exchange, and being informed that the owner of the real estate would soon be in Lincoln, nothing was done until his arrival, when he was introduced to defendant and an exchange was effected by them.

A jury trial was had in the district court, which resulted in a verdict in favor of defendant.

Plaintiffs bring the cause to this court by proceeding in error.

The motion for a new trial was based upon three grounds, as follows:

"First. The verdict is contrary to law.

"Second. The verdict is contrary to the instructions given for the plaintiffs.

"Third. The verdict is contrary to the evidence, and not sustained thereby."

The assignments of error in the petition in error are the same, with the additional one, that the court erred in overruling the motion for a new trial.

It will be seen that the only questions presented are as to whether the verdict is sustained by sufficient evidence, and whether it falls within the rules of law laid down by the court in its instructions to the jury. As the testimony was conflicting, the burden of proof being upon plaintiffs, we cannot see that there was such manifest error in the finding of the jury as to call for a reversal of the judgment. The jury being the judges of the weight of the testimony, their verdict upon the facts cannot be molested.

The instructions asked by plaintiffs and given by the court were as follows:

"1. If you find from the evidence that Sherwin, Sherwin & Co. acted as the agent of both parties, with the full knowledge and consent of both parties, and took no other part in the exchange of the property, then you will find for the plaintiffs, if the exchange was effected by plaintiffs bringing the parties together...