66 Neb. 835 | Neb. | 1902
There is no dispute as to facts calling for our consideration disclosed by the record in this case. The plaintiff in error purchased certain buildings which had been erected upon the exposition grounds at Omaha for the purpose of taking them apart and selling the material of which they Avere composed. Pursuant to this purpose, it contracted to sell to the defendant in error a specified quantity of lumber, or so much thereof as it, should be able to, take out of the. structures mentioned. The specified quantity of lumber was not delivered and this action was brought to recover damages for an alleged breach of the contract. In the petition the terms of the agreement were incorrectly recited in this respect: that the pleading averred an unqualified contract to sell, omitting the condition that the defendant should be able to obtain the material from the buildings. The answer correctly recited the contract and denied a breach of it. There was a conflict in the evidence as to whether the defendant had been able to obtain the required lumber from the buildings. At the request of the defendant, the court gave to the jury the following instruction: “The jury are instructed that, under the contract between the plaintiff and the defendant herein, the defendant was only bound to furnish and deliver to the plaintiff such portions of the lumber specified in the contract as the defendant was able to take out of the buildings upon the exposition grounds.” Having asked and obtained this instruction, we think the defendant is estopped to dispute that it correctly states the purport and effect of the con
The plaintiff below recovered a verdict and judgment,
By the Court: For reasons stated in the foregoing opinion, it is ordered that the judgment of the district court be
Affirmed.