22 Neb. 168 | Neb. | 1887
This action was originally instituted before a justice of the peace in Cass county. After trial and judgment the cause was removed to the district court by appeal, where a jury trial resulted in a verdict for defendant, and upon a judgment being rendered thereon, the plaintiff brings error to this court.
The plaintiff’s action was founded upon an account for merchandise, consisting of saddlery and harness hardware, amounting to the sum of $39.22. Defendant, by his answer, admitted the purchase of the hardware, by order, through a salesman of plaintiff, but alleges that it was warranted to be of good quality, and that if not so found upon trial, it need not be paid for. That upon such trial it was found to be worthless, and could not be used in the manufacture of-harness, and that many of the harness in which it was used were returned broken, by the failure of the hardware to answer the purpose of its manufacture, and other material had to be used instead. It is alleged that the hardware was worthless and of no value. There are other allegations in the answer which need not be noticed.
The verdict of the jury was in favor of the defendant, but allowing him no affirmative damages.
The testimony was conflicting. On the part of defendant, upon whom was the burden of proof, it was to the effect that he gave the order to the traveling salesman,
It is insisted that plaintiffs should have recovered a judgment for some amount, as it is not claimed that all the hardware was shown to be defective. While this may, in a sense, be true, yet we could not reverse the judgment on this ground, for, if plaintiff is to be believed, his testimony did tend to prove the worthless character of substantially all by a comparison of that part which was proven bad with that which was not tested. But we cannot agree with plaintiff's counsel that the rule contended for should govern. It was not the purpose of the manufacturer of the hardware that it should be used independently, but, upon the contrary, its value consisted in its being combined with other material in the manufacture of harness, etc. If this hardware, upon trial, proved to be worthless — and of that it was the province of the jury to decide — it would have been folly for defendant to have continued its use in such manufacture, with the consciousness that it must result only in loss. The bill consisted of such hardware as usually enters into the manufacture of harness. If the material was so defective as to render the hai’ness, when
It is contended that the jury failed to follow the instructions of the trial court as to the measure of damages. This contention is based upon the assumption that damages were allowed for loss of custom growing out of defective harness sold by defendant, as a result of the bad material purchased by him, of the plaintiff. There is ' nothing shown in the record by which it appears that any such damages were allowed by the jury, and we cannot presume that such was the case. The instructions of the court gave no directions of that kind, and no affirmative damages are shown by the verdict.
After judgment had been rendered plaintiff filed a motion by which he sought an order requiring the clerk to tax the costs made by each party separately, and that only the costs of the defendant be included in the judgment recovered by defendant.
As to the second clause of this motion, it must be sufficient to say that the judgment rendered was all that could have been done, had the motion been sustained. It is, that defendant “recover of and from the said plaintiff his costs in and about this suit in that behalf expended, ” etc. As to the first clause of the motion, asking' that the ’costs be taxed separately, the motion should have b'en sustained.
Section 30 of chapter 28 of the Compiled Statutes of 1885 is as follows: “In all actions, motions, and proceedings, in the supreme, district, or justices’ courts, the costs of the parties shall be taxed and entered on the record separately.” This provision of the statutes should have been complied with. This error, however, will not require the reversal of the judgment in favor of defendant, upon the merits of the case, but only so far as to correct the error found in the record.
The order overruling the motion for a new trial and ren
The cause is remanded that this order may be complied with, with directions to tax the costs of the bill of exceptions against plaintiff in error.
Judgment accordingly.