Welch v. Adams

Citation127 N.W. 1064,87 Neb. 681
Decision Date22 October 1910
Docket Number16,146
CourtSupreme Court of Nebraska

APPEAL from the district court for Douglas county: ALEXANDER C TROUP, JUDGE. Affirmed.


Oliver S. Erwin, Nelson C. Pratt and Alvin F. Johnson, for appellant.

Bryce Crawford and Rich, O'Neil & Gilbert, contra.



This is an action upon a contract. The plaintiff prevailed, and the defendant appeals.

The defendant employed the plaintiff to solicit advertisements and agreed to pay him one-half of the amount paid by the advertisers, as follows: One-fourth of the contract price for every advertisement whenever a contract should be received and accepted, "balance of commission payable as the contracts are collected by the said party of the first part." The plaintiff alleged in his petition that the defendant had received and accepted orders secured by the plaintiff aggregating $ 2,659.25, "and the defendant has collected thereupon from such advertisers the sum of $ , and the defendant thereby became indebted to the plaintiff in the sum of $ 1,329.62." The plaintiff admits having received from the defendant $ 1,022, and demands judgment for $ 307.07. The petition was not assailed by motion or demurrer before trial; but an answer was filed, wherein the defendant alleged that he did not owe plaintiff anything, and further pleaded a settlement. The defendant's plea of nil debit did not deny or place in issue any fact alleged in the petition. Gray v. Elbling, 35 Neb. 278, 53 N.W. 68; Baldwin v. Burt, 43 Neb. 245 61 N.W. 601; Bankers Union of the World v. Favalora, 73 Neb. 427, 102 N.W. 1013.

Upon the trial of the cause, the defendant objected to the introduction of any evidence because the petition did not state facts sufficient to constitute a cause of action in the plaintiff's favor, but did not state in what particular the pleading was defective. The objection was overruled. The defendant now insists the plaintiff did not allege that the defendant collected any money upon the advertising contracts, and for that reason it does not appear that the defendant is in debt to the plaintiff. The rule is well established that, if the defendant's liability depends upon a condition, the plaintiff should charge that the event has come to pass. Wilson v. Clarke, 20 Minn. 367; Inda v. McInnis, 25 Nev. 235, 59 P. 3. If, however, the defendant does not object to the sufficiency of the petition until after the trial is commenced, the pleading will be liberally construed, and, if possible, sustained. Chicago, B. & Q. R. Co. v. Spirk, 51 Neb. 167, 70 N.W. 926; Peterson v. Hopewell, 55 Neb. 670, 76 N.W. 451; Fire Ass'n v. Ruby, 60 Neb. 216, 82 N.W. 629; National Fire Ins. Co. v. Eastern Building & Loan Ass'n, 63 Neb. 698, 88 N.W. 863.

Applying the rule to the case at bar, we are of opinion that the allegation in the petition should be construed as an imperfect statement that the defendant has collected the amount due on all of the advertising contracts. Thus construed, the pleading states a cause of action in plaintiff's favor. We have no doubt that, if the defendant had asked for a more specific...

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