Burgeson v. Schultz

96 Neb. 553 | Neb. | 1914

Fawcett, J.

This action originated in the county court of Adams county, was appealed to the district court, where issues were made up by petition, answer, and reply. At the conclusion of the trial to a jury, the court directed a verdict in favor of plaintiff for the full amount of his claim, upon which judgment was entered, and defendant appeals;

The controversy is over a written contract entered into by and between the parties over the sale of a certain make of automobiles in Pbelps and Gosper counties, Nebraska. At the time the contract was entered into, plaintiff paid defendant $500, which, in the language of the contract, constituted “a deposit.” As fast as plaintiff would sell a car, $25 of this deposit was credited as part payment thereon. The contract contained the following clause: “This contract expires October 1, 1910, or may be canceled by either party upon thirty days’ written notice given through the usual course of mail or otherwise.” After having sold three machines, plaintiff in writing canceled the contract. This action is to recover the $500 deposit, less $25 on each of the three machines sold.

The appeal is lodged in this court upon the transcript alone. Three errors are assigned: First, in overruling the motion of defendant for an instructed verdict; second, in instructing the jury to find for the plaintiff; third, that the petition does not state facts sufficient to constitute a cause of action. As no bill of exceptions has been furnished, we cannot consider the first two assignments. The only, question therefore is: Does the petition state a cause of action? The contract is set out in full in the petition, and the contention of defendant is that this contract shows an absolute sale of 20 machines with a payment of $25 to apply on each machine, and that by canceling the contract, as plaintiff was permitted to do by its terms, he did not thereby become entitled to a return of the. cash payment which he had made upon 17 machines not sold. The contract is not clear and explicit by any manner of means. There is language in it which would bear.the construction that it was an absolute contract of. sale, while there is other language which implies that it was simply a contract of agency for a limited territory under an agreement by the agent that he would sell a stated number of machines.. It is' contended by plaintiff, in effect, that if we had the bill of exceptions before us we would be able to see from that just Iioav the parties themselves had construed the contract, and would thus be advised that the court was right in directing a verdict for plaintiff, as was done. The probabilities are that this contention is true. The transcript from the county court is in the record. The entire record shows that neither in the county court nor before the district court was the sufficiency of the petition assailed. -That contention is made for the first time in this court. In the light of our oft-repeated holding that in such case the petition will be liberally construed, we cannot, on the record before us, say that the petition is insufficient.

Affirmed.