Uhlig v. Barnum
| Citation | 43 Neb. 584,61 N.W. 749 |
| Parties | UHLIG v. BARNUM. |
| Decision Date | 17 January 1895 |
| Court | Nebraska Supreme Court |
1. A. agreed to put into the hotel of B. a hot-air furnace, and contracted that all work should be done in a workmanlike manner. Held, that this contract required that the furnace should be so constructed as not to expose the building to danger from fire, when the furnace was used by a person of ordinary prudence in the usual manner.
2. One cold-air box took fire, and there was evidence tending to show that this was because the valves were so arranged that air forced into the other box drove the hot air back into the one which ignited. The evidence tended to show that in so arranging the valves the owner followed the instructions given by those who sold the furnace, and placed it in the building. Held, that the jury was justified in finding that the owner had used the furnace in a reasonably prudent manner.
3. A new contract with reference to the subject-matter of a former one does not supersede the former, and destroy its obligations, except in so far as the new one is inconsistent therewith, when it is evident from an inspection of the contracts, and from an examination of the circumstances, that the parties did not intend the new contract to supersede the old, but intended it as supplementary thereto.
4. Where two parties have made a contract, which one of them has broken, the other must make reasonable exertions to render his injury as light as possible; and he cannot recover, from the party breaking the contract, damages which would have been avoided, had he performed such duty.
5. Therefore, in the case stated, where the owner knew that the furnace was so constructed as to imperil the building, and continued to use the furnace without having it repaired in such a manner as to obviate the danger, held, that he could not recover from the person constructing the furnace the value of the property destroyed by a resulting fire.
Error to district court, Phelps county; Gaslin, Judge.
Action by Edwin Barnum against Max Uhlig. From a judgment for plaintiff, defendant brings error. Remittitur to be filed, or judgment reversed.Rhea Bros., for plaintiff in error.
St. Clair & McPheely, for defendant in error.
The defendant in error, who was plaintiff in the district court, alleged in his petition that from the 13th of November, 1889, he had been the owner of certain land in the town of Loomis, in Phelps county, and that up to the 25th of March, 1891, he had on said premises a frame hotel building, then worth $2,000, and personal property within said building worth $1,200; that in December, 1889, he entered into a written contract with the defendants in the district court, Grable & Uhlig, whereby the defendants, in consideration of $162, undertook to construct and put into said hotel building a furnace for the purpose of heating said building, and that all work connected with said furnace should be done in a good and workmanlike manner, safe and suitable for the purpose intended; that the defendants did not construct said furnace in a safe or workmanlike manner, but negligently, and that the cold-air boxes were carelessly constructed, and placed so as to be dangerously exposed to the heat generated by the furnace, said boxes being constructed of wood; and that, by reason of the negligent and unworkmanlike construction of said furnace and cold-air box, said box took fire, which fire was communicated to the hotel building, whereby it was burned, to plaintiff's damage in the sum of $3,200, for which sum the plaintiff prayed judgment. Grable answered, setting up a dissolution between him and Uhlig before the transaction complained of took place, and denying all connection therewith, whereupon the plaintiff dismissed as to Grable. Uhlig answered by a general denial. There was a trial to a jury, and a verdict and judgment for the plaintiff for $500. The defendant prosecutes error.
It appears from the record that a single instruction was given by the court at the plaintiff's request. This instruction does not appear in the transcript, but, by the clerk's certificate, it would seem that the instruction was never returned by the jury, and has not been, since the jury retired, in the custody of the clerk, or with the record. One of the assignments of error is that the court erred in rendering judgment after the loss of the instruction. Grimison v. Russell, 11 Neb. 469, 9 N. W. 647, is cited in support of that assignment. In Grimison v. Russell, judgment was entered, against the objection of the defendant, after all the pleadings were lost, and without the record containing substituted pleadings. Except where judgment is rendered by consent, it was said that the record must always disclose at least the petition upon which the judgment is based, and that, even in the case of a judgment by consent, something in the nature of a petition must disclose the cause of action, in order to protect the defendant against further litigation upon the same cause. Attention was called to the defect in the record before the judgment was entered. No substitution was made of copies for the lost pleadings, and the entry of judgment against defendant's objection deprived him of all opportunity to have the case reviewed upon its merits. In this case no objectionwas made in the motion for a new trial, or otherwise, to the entry of judgment, on account of the loss of the instruction. The defendant seeks to excuse this by saying that the loss was not known to him at that time. But he had the means of knowledge, and was certainly as much bound to know of the loss as either the court or the adverse party. This is a court of review, and the question raised, not having been presented to the district court, will not be here considered.
The most serious assignment of error relates to the sufficiency of the evidence to sustain the verdict rendered. It appears that in November, 1889, a written contract was made, as follows: On the trial, no question was made as to Johnson's authority, or as to the fact that, while the contract was made in the name of Grable & Uhlig, it was in fact made on behalf of Uhlig alone. The furnace was put in under the supervision of Johnson. Barnum, who was a brickmason, made the excavation and laid the foundation, but he acted under Johnson's direction. Men employed by Barnum about the construction of the hotel built the cold-air boxes, but in so doing they, too, acted entirely under the direction of Johnson. A cold-air box was constructed from the outer wall, about on a level with the top of the furnace, to a point near the furnace, where an elbow was placed, and the box continued downward, parallel with the furnace, to its base. The upright portion of the box was within a very few inches of the furnace. Barnum complained that this construction might be dangerous, whereupon Johnson said that he would put asbestos paper over the box, and that it would then be safe. The exposed portion of the box was covered with asbestos paper, and some tin was used. The furnace was completed in February, 1890, and used to a certain extent that spring. It was also used during the winter of 1890 and 1891. During this time, complaints were made to Uhlig that it did not properly heat the building. On March 13, 1891, the cold-air box referred to was discovered to be on fire inside. It was broken open, the fire extinguished, the boards partly replaced, and some galvanized iron also used,--in what manner, does not appear. Barnum continued to use the furnace, but immediately wrote Uhlig; and Uhlig came to Loomis, and another contract was entered into, as follows: ...
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