26 Neb. 409 | Neb. | 1889
This was an action in the nature of assumpsit brought by the defendant in error against the plaintiff in error in the Gage county district court, for goods, wares, and merchandise, sold and delivered. The petition alleges that on the fourth day of November, 1887, plaintiff sold and shipped to said defendant, at Council Bluffs, Iowa, at the defendant’s request one car load of potatoes, containing five hundred and one bushels of potatoes, at the agreed price of forty-eight cents per bushel, amounting to the sum of $240.48; that defendant received said potatoes, paid the freight thereon, unloaded them, and put them in its cellar at Council Bluffs, Iowa, and refused to pay for them, and still refuses to pay for them; that there is now due to plaintiff-from the defendant, for said potatoes, the sum of $240.48, no part of which has been paid, etc.
Defendant made answer to said petition, alleging that on or about the first day of November, 1887, it bargained at plaintiff’s request for one car load of potatoes of No. 1 extra good quality, and to' be in first-class condition when delivered on track at Lanham, state of Nebraska; and that defendant agreed to purchase from the plaintiff said car load of potatoes, in quality as aforesaid and in good
The plaintiff replied to the said answer denying each and every allegation of new matter therein contained.
There was a trial to a jury, which found for the plaintiff, ■and assessed his damages at $251.68.
The defendant brings the cause to this court on error. It appears from the record that before decision of the court upon the defendant’s motion for a new trial, the plaintiff entered a remittitur damnum in the sum of sixty cents.
There is a large amount of evidence contained in the bill of exceptions, much of which is scarcely applicable to the pleadings. Indeed, there was but one question between the parties. The plaintiff alleged that he sold to the defend
While the difference between the parties as to the price at which the potatoes were bought and sold is rather unusual, it seems to have been overlooked by the jury, as well as the counsel; but it presents a question of no great difficulty No question of agency is presented by the pleadings, and although it seems to have received a good deal of attention, both on the trial in the court below and in the briefs of counsel, I do not deem it of importance or as controlling the case whether the witness Bryant was the agent of either of the parties. The only question for the jury was, Were the potatoes sound and merchantable? On this question there was a sharp and irreconcilable conflict of evidence. No witness testified that the potatoes were damaged or unsound, but five witnesses on the part of the defendant testified that they were unmerchantable on account of their inferior size. On the other hand, the plaintiff and six witnesses on his behalf, testified that the potatoes were merchantable, and of good average size and good quality. It was no question of science or skill; any witness of ordinary capacity can testify as to the quality and soundness of potatoes; and the weight of their testimony was a question exclusively for the jury.
No question is raised by plaintiff in error, in the brief, upon the instructions to the jury.
The judgment will therefore be reversed and the cause remanded for a new trial, unless the plaintiff shall, within twenty days from the date of the filing of this opinion, enter a remittitur in this court of one dollar and forty-nine cents. But in case of the entering of such remittitur within the time above stated, the judgment is affirmed.
Judgment Accordingly.