57 Neb. 396 | Neb. | 1899
This was a suit by Wilson against the Burwell & Ord Irrigation and Power Company, a corporation. The
The judgment is assailed as not sustained by the pleadings, and we think this contention is in part correct. So far as the claim for $1,000 is concerned it is based on a contract for the sale at that price of the plans, maps, profiles, estimates, and engineering data already prepared by the plaintiff. A refusal to pay is alleged, but there is in no place in the petition any allegation that plaintiff had delivered these things to defendant, that he had tendered them, or that he was willing to do so. The answer specificálly charges that he had not delivered or tendered them, and that he still retained them in his possession. The reply meets this averment as follows: “Plaintiff admits that the said survey, maps, profiles,
As to the claim of $125 for services performed, there is the averment of performance after the corporation was organized, and to this extent certainly a ratification of the promoters’ contract. The evidence, while conflicting, supports a finding of that character. The contract is severable. Generally speaking, the test is that where there are several undertakings, each supported by a distinct consideration, the contract is severable. (Keeler v. Clifford, 165 Ill. 544; Pierson v. Crooks, 115 N. Y. 539; McDaniels v. Witney, 38 Ia. 60.) The rule is here applicable. There was pleaded a sale of the engineering data
J UD G-MENT ACCORD IN GLY.