Wasson v. Palmer

• Decision Date: 08 December 1882
• Citation: 14 N.W. 171,13 Neb. 376
• Parties: REZINE WASSON, PLAINTIFF IN ERROR, v. A. L. PALMER, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

14 N.W. 171

13 Neb. 376

REZINE WASSON, PLAINTIFF IN ERROR, v. A. L. PALMER, DEFENDANT IN ERROR

Supreme Court of Nebraska

December 8, 1882

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

REVERSED AND REMANDED.

Dwight G. Hull and R. D. Stearns for plaintiff in error.

Lamb Billingsley & Lambertson for defendant in error.

OPINION

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 3d day of May, 1877 Wasson purchased from Palmer the building in which he resided and ten acres of land for the sum of $ 7,000, to be paid as follows: $ 100 cash in hand, $ 3,000 in thirty 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 one thousand dollars over and above the one hundred dollars paid as aforesaid, by reason of the decline of said lands in value from the price it was sold at to defendant to a price $ 1,100 less, which plaintiff was subsequently compelled to sell said land 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...