77 Neb. 840 | Neb. | 1906
This cause is here a second time for review by this court. Our former opinion, in which the issues are fully stated, is reported in 12 Neb. 907. In this opinion it was held that, under the pleadings and proof, an action for the contract price of the hay was properly brought, and that the case should have, been submitted to a jury. On a retrial of the cause in the district court in conformity with this opinion, the case was submitted to a jury and a verdict was returned in favor of the plaintiff for the contract price of the hay in dispute. To reverse the judgment on this verdict defendant has appealed to this court.
We are fully satisfied with the conclusion reached in our former opinion and adhere to it, not only as the law of the case, but also as a correct solution of the questions involved, so far as plaintiffs right to recover is concerned.
This conflicting testimony raised an issue both on the right to rescind and on the measiire of damages, if any, which plaintiff should receive. Both of these issues should have been fully and fairly presented to the jury in the instructions. Defendant requested an instruction on the right of rescission because of the alleged fraudulent weights of the hay by plaintiff on the Allen scales, and also one on the measure of damages. Each of these instructions were refused, and it appears that the court attempted to submit defendant’s entire theory of the case
Another portion of this same instruction told the jury: “If you find from the evidence that the plaintiff was willing to permit the defendant to remove the Nay and have it weighed at other scales and so notified defendant, then defendant is liable for the full purchase price of the hay, less any payments made thereon, and also less such portion, if any, of said hay at the contract price that the evidence shows has been disposed of or converted by the plaintiff.” This portion of the instruction seems faulty on the measure of damages, in that it overlooks the duty which plaintiff owed, when she had notice of defendant’s refusal to take the remainder of the hay, to mitigate the damage as far as possible by making reasonable efforts to dispose of the hay so as to prevent an accumulation of
We therefore conclude that tbe action of tbe trial court in giving this instruction over defendant’s objection was prejudicial to bis rights, and we recommend that the judgment of tbe district court be reversed and tbe cause remanded for further proceedings.
By tbe Court: For tbe reasons given in tbe foregoing opinion, tbe judgment of the district court is reversed and tbe cause remanded for further proceedings.
Beversed.