Van Every v. Fitzgerald

• Decision Date: 11 January 1887
• Citation: 31 N.W. 264,21 Neb. 36
• Parties: VAN EVERY v. FITZGERALD.
• Court: Nebraska Supreme Court

21 Neb. 36

31 N.W. 264

VAN EVERY

v.FITZGERALD.

Supreme Court of Nebraska.

January 11, 1887.

Syllabus by the Court.

Books of account are receivable in evidence only when they contain charges by one party against the other, and then only under the circumstances, and verified in the manner, provided by statute.

Error to district court, Lancaster county.

Action to recover damages for breach of contract.Lamb, Ricketts & Wilson, for plaintiff in error, Van Every.

Marquett, Deweese & Hall, for defendant in error, Fitzgerald.

COBB, J.

On August 19, 1884, plaintiff filed petition in court below, alleging: “ First cause of action. That defendant is indebted to plaintiff for moving 20,000 cubic yards of dirt on section 25 of Kenesaw & Oxford Branch of B. & M. R. R., at agreed price of 18 cents per cubic yard, amounting to $3,600. Second cause of action. That on or about February 1, 1884, plaintiff and defendant entered into contract, by which plaintiff was to do the clearing, grubbing, and grading of section 25 of said railroad work, to be commenced on or before March 1, 1884, and done by July 1, 1884. If, in judgment of engineer, plaintiff was not prosecuting work with such vigor as to insure its being done as contracted, defendant could serve notice to that effect on plaintiff; and, if plaintiff failed for three days to put on enough force, defendant could either put on extra force, and charge same to plaintiff, or could terminate contract. Plaintiff was ready and at all times willing to perform, and did so, except when prevented by defendant. See contract, Exhibit A. The work consisted of about 55,000 cubic yards of excavation, and, after plaintiff had done the hardest and most expensive part of it, the defendant, on or about May 14, 1884, without serving notice, without getting judgment of engineer, took possession of plaintiff's tools, assumed control of work, ordered plaintiff off work, and refused to settle; that work left undone was less expensive, and more easily done, than that already done; that defendant fraudulently, and for the purpose of cheating and oppressing plaintiff, prevented plaintiff from completing work. Plaintiff prays damages in sum of $9,900.”

On October 29th, defendant answered, making a general denial except as to those matters expressly admitted. “Admits the contract as alleged. Alleges that plaintiff, at no time, prosecuted work so as to complete it in time contracted, and that defendant duly served notice on plaintiff to increase force. Plaintiff failing to increase force, defendant, on fourteenth of May, took possession of work, but not till plaintiff had abandoned it, and defendant then relet a small portion of work, and gave plaintiff benefit of profits. Defendant took possession of work May 14, 1884. That after notice was served, and plaintiff failed to increase force, defendant put on extra force, and completed work, and charged costs of same to plaintiff. Defendant admits that plaintiff removed and filled 20,000 cubic yards, but alleges full payment, as work progressed, by virtue of terms of contract; that defendant was compelled to pay out more for completion of job than plaintiff was to have for all the work, and plaintiff owes defendant $1,469.53.”

On December 29, 1884, plaintiff replies: “Denying that any complaint was made about the work, or that engineer ever made any complaint or decision that plaintiff was not vigorously prosecuting work, or that any notice thereof was given plaintiff; alleges that engineer was under influence and control of defendant, and colluded and confederated with him, and engineer and defendant directed plaintiff to do hardest work first, with secret and fraudulent design to drive off work when hardest work was done; that, after plaintiff had done twenty fifty-fourths of work, defendant began to intermeddle, and sent one James to superintend work, and James drove off plaintiff's men and teams by violent, abusive, and tyrannical conduct, and rendered it impossible for plaintiff to get teams and men to complete work. Defendant, to cheat, defraud, and oppress plaintiff, prevented plaintiff from completing work. Plaintiff denies that any notice was ever served on him to increase force on work; denies that at any time force of men and teams was insufficient to do work in time, if defendant had not interfered. Plaintiff denies that he abandoned work; denies that defendant paid out anything to complete work. General denial, except as specially admitted, answered, or denied.”

On the third day of June, 1885, there was a trial to jury, with verdict for plaintiff for five dollars. The...