Wasson v. Palmer

• Decision Date: 08 December 1882
• Citation: 13 Neb. 376,14 N.W. 171
• Parties: WASSON v. PALMER.
• Court: Nebraska Supreme Court

13 Neb. 376

14 N.W. 171

WASSON

v.PALMER.

Supreme Court of Nebraska.

Filed December 8, 1882.

Error from Lancaster county.

Hull & Stearns, for plaintiff.

W. J. Lamb, for defendant.

MAXWELL, J.

This is an action by Palmer against Wasson to recover damages for an alleged breach of contract for the sale of real estate. It is alleged in the petition that on the third day of May, 1877, Wasson purchased from Palmer the building in which he resided and 10 acres of land for the sum of $7,000, to be paid as follows: $100 cash in hand, $3,000 in 30 days, and $3,900 in sixty days from that date; that said Wasson has wholly failed to comply with said contract, and has paid no part of said sum except the $100. The damages alleged to have been sustained are set forth in the following language: “Plaintiff further avers that by reason of the non-performance of the said covenants and agreements in said contract contained, by defendant to be performed, he, plaintiff, hath suffered damage in the sum of $1,000, over and above the $100 paid as aforesaid, by reason of the decline of said land in value from the price it was sold at to defendant to a price $1,100 less, which said land plaintiff was subsequently compelled to sell by reason of the actual decline in value thereof in said sum last named.”

Wasson in his answer admits the making of the contract, and the payment of $100, but denies the other allegations in the petition, and alleges that Palmer has suffered no loss on account of the alleged breach of contract. On the trial a verdict for $1,000 was rendered in favor of Palmer, upon which judgment was rendered.

The first error assigned is that the jury was impaneled in the absence of the plaintiff in error or his attorneys. This assignment is sustained by an affidavit of Mr. Stearns, but there is no record of any objection to the jury, or any particular juror. The jury seems to have been acceptable to Wasson's attorneys before the trial was entered upon, nor is any objection of this kind made in the motion for a new trial. The right of every suitor to a fair and impartial jury has been steadily maintained by this court ever since its organization. But the objections must be made before the trial; otherwise they are waived. It is the business of attorneys to be present in court, and be ready to proceed with their cases when reached in their regular order on the docket. But if, from the sudden termination of the trial, a case is reached at a much earlier...