The Singer Manufacturing Co. v. Dunham

• Decision Date: 05 January 1892
• Citation: 50 N.W. 1122,33 Neb. 686
• Parties: THE SINGER MANUFACTURING CO. v. H. P. DUNHAM
• Court: Nebraska Supreme Court

50 N.W. 1122

33 Neb. 686

THE SINGER MANUFACTURING CO. v. H. P. DUNHAM

Supreme Court of Nebraska

January 5, 1892

ERROR to the district court for Buffalo county. Tried below before HAMER, J.

REVERSED AND REMANDED.

Marston & Nevius, for plaintiff in error.

A. H Connor, and Stewart & Rose, contra.

OPINION

COBB CH. J.

The plaintiff in error brought its action in replevin against the defendant on May 21, 1888, alleging ownership and right of possession to Singer sewing machine No. 7,288,962, style of I. F. B. W. D. C., and that defendant wrongfully detains the same, asking judgment for the title and possession and for costs.

The defendant answered denying the allegations of the plaintiff and setting up that the machine was imperfect; that it would not perform the work represented by the plaintiff's agent, J. N. Jenkins, as an inducement to defendant to purchase the same: that it was perfect in all respects and would perform any work intended to be done and performed by any perfect machine, and was of the value of $ 85, warranting the same accordingly, upon which defendant relied, not having tried the machine, and upon which representations and warranty defendant executed the contract of purchase to the plaintiff; and avers that the machine was not perfect and would not perform the work as represented, and was not of the value of $ 85, or any other sum, by reason of which there was and is no consideration for said contract.

The defendant further set up her counter-claim that after making the contract she paid the plaintiff $ 25, as follows: $ 15, the value of her old sewing machine, and $ 10 in cash, which the plaintiff retains, to her damage $ 25; that by reason of the false representations of the plaintiff she was induced to part with her old machine, and has been without the use of one by reason of the worthlessness of the one purchased, and in controversy, for more than thirteen months, to her damage $ 5 monthly, amounting to $ 65, and to her full damages in the premises $ 90, for which she asks judgment.

The plaintiff's motion to strike from the answer the defendant's allegations as to the imperfection of the machine was overruled, and that to strike out the answer setting up a counter-claim was sustained.

There was a trial to a jury June 13, 1889, with a verdict that the right of possession of the property at the beginning of the action was in defendant, and the value of her right $ 25, with damages for detention at 10 cents.

The plaintiff's motion for a new trial was overruled and judgment entered on the verdict, with exceptions of record. Errors are assigned as follows:

1. The verdict is contrary to the law and evidence.

2. It is not sustained by sufficient evidence.

3. In admitting improper evidence for the defendant as to the quality of the machine in controversy.

4. In giving instructions 1, 2, 3, of the court's own motion.

5. In refusing instructions 2, 3, 4, asked by plaintiff.

6. In excluding proper evidence offered by plaintiff.

7. And giving instructions inconsistent with each other.

8. And in overruling the motion for a new trial.

The cause having been brought to this court on error by the plaintiff, the defendant on the 6th day of May, 1890, made and filed a motion reciting that the transcript of the proceedings filed with the petition in error shows that the judgment of the lower court, which was duly rendered on the verdict, was informally and defectively entered by the clerk of said lower court in the journal thereof, by reason of which no final judgment appears in the transcript, and praying that reasonable time might be granted by this court for the correction of said judgment entry in accordance with the facts, and that defendant be allowed to file herein a certified copy of said judgment as corrected. Whereupon an order was, on...