Worrall Grain Company v. Johnson
| Decision Date | 06 February 1909 |
| Docket Number | 15,449 |
| Citation | 119 N.W. 668,83 Neb. 349 |
| Parties | WORRALL GRAIN COMPANY, APPELLEE, v. FRANK JOHNSON, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Lancaster county: LINCOLN FROST JUDGE. Affirmed.
AFFIRMED.
O. B Polk, for appellant.
Field Ricketts & Ricketts, contra.
Plaintiff, now the appellee, brought this action in the district court to recover of the defendants the difference between the sum advanced to them on a car-load of wheat and what was realized therefor when it was sold on the market. It appears that the grain was sold to plaintiff by defendants Johnson and Cave, through their agent, defendant Hempel, as No. 2 hard wheat, and defendants, when the grain was loaded at the point of shipment, drew a sight draft on the plaintiff (which was duly paid) for a sum equal to 90 per cent. of the purchase and market price for that grade of wheat. When the grain reached Minneapolis, which was its place of destination, it was found to be wet and badly heated, so that it was not up to any grade whatever, and could not be sold on that market. It was immediately billed to Chicago, where it was sold at the highest price obtainable, and brought net $ 322.60 less than the sum advanced thereon. It also appears that the plaintiff was not certain as to whether Hempel was the principal in the transaction or whether he was merely the agent of the defendants Johnson and Cave, who, it developed later, were in fact his undisclosed principals.
The plaintiff therefore by its petition set forth all of the foregoing facts, and alleged that the wheat delivered to it by the defendant Johnson was wet and damaged and not up to grade when delivered and loaded into the car by him, and that he well knew its quality and condition. The petition further set forth the amount of wheat delivered by Johnson, the amount delivered by Cave, and prayed for an accounting and adjustment of the rights of the several defendants, a judgment for the sum of $ 322.60, with interest thereon from the 28th day of August, 1905, and "for such other and further relief as may be just and equitable."
The defendants answered separately. The answer of defendant Johnson, who is the sole appellant, was: First, misjoinder of parties defendant; second, misjoinder of causes of action; third, no equity in the plaintiff's bill; fourth, an admission that plaintiff is a corporation, and a denial of all of the other allegations of the petition. Defendant Johnson also filed a motion praying that the case be transferred from the equity docket to the law docket of the district court, which motion was overruled; and when the case came on for hearing he demanded a trial by jury, for the reason that the action was one at law, and not in equity. His request was denied, to which he duly excepted. A trial resulted in a finding and judgment for the plaintiff, and against the defendant Johnson, for the sum of $ 257.50, and he has brought the case here by appeal.
Defendant now assigns as error certain rulings of the district court, to wit, overruling his motion to require the plaintiff to elect whether it would proceed against him or the defendant Hempel, and overruling his demurrer to the plaintiff's petition. In disposing of these questions, it is sufficient to say that by answering over after the rulings complained of he waived his exceptions thereto, and they cannot now be considered. In Becker v. Simons, 33 Neb. 680, 50 N.W. 1129, it was held that, where a party answers over and goes to trial on the merits of an issue which he has elected to join, he waives the error on the overruling of motion or demurrer. To the same effect are Buck & Greenwood v. Reed, 27 Neb. 67, 42 N.W. 894; Pottinger v. Garrison, 3 Neb. 221; Lederer v. Union Savings Bank, 52 Neb. 133, 71 N.W. 954, and ...
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