276 N.W. 190 | Neb. | 1937
This is an appeal from the district court for Douglas county, wherein the court found for the plaintiff and assessed the amount of his recovery in the sum of $1,155.74, from which decree and judgment the defendant appealed.
The plaintiff’s petition predicates a cause of action based on an alleged written contract under date of January 30, 1933, i under the terms of which plaintiff agreed to use certain products of the defendant, and the defendant agreed to pay one-half cent for each gallon of gasoline delivered by the defendant to the plaintiff as a so-called rental, and agreed further to allow the plaintiff a margin of 41/2 cents under the standard retail gasoline prices in the city of Omaha, such contract being for a period of one year and subject to renewal for three years. Plaintiff’s petition further alleges that on February 1, 1933, one Chris C. Bentzen brought an action in replevin to recover certain equipment in the plaintiff’s place of business, and plaintiff asks an accounting.
The defendant’s answer contains a general denial, alleges an assignment of the equipment in the gasoline station to it and a foreclosure of such chattel mortgage, and further alleges the execution of two contracts by the plaintiff, one a regular service station lease contract; the other a contract providing for the sale of gasoline and the margin of profit to the plaintiff thereunder; sets forth the account of the plaintiff and defendant, and prays judgment for the oil, gas, grease and tire account of the plaintiff with defendant, in the sum of $1,244.26.
The evidence reflects that the plaintiff was desirous of entering into the oil and gasoline business at Twenty-fourth street and St. Mary’s avenue in the city of Omaha, and taking over a station, previously occupied by F. D. Winslow and W. R. McCoy, who apparently had abandoned the operation of the station, owing a mortgage on the equipment therein to Chris C. Bentzen, dated July 26, 1932, which mortgage was properly filed of record. The plaintiff had negotiated with several oil companies selling standard products, and finally contacted the defendant company with a view to contracting with it to handle its products. The defendant company, took an as
The evidence on behalf of plaintiff is to the effect that the gasoline and oil contract executed by him was not filled in relative to the margin amount and was to contain noncancelation clauses; that the cancelation clause was stricken from the lease agreement, and the contract carrying the gasoline margin conception contained a cancelation clause; that such contracts were for his convenience in order to start operation of the stations on the 19th of January, 1933, and that later another contract was to be entered into between the parties, conveying his conception of the margin of profit to which he would be entitled, in the event he handled defendant’s products, viz., 5 cents a gallon.
The plaintiff predicates his cause of action on the contract which he alleges was entered into January 30, 1933, and in which he claims he conveyed his idea of the margin of profit to which he was entitled, and which was on the printed form exactly as the contract executed on January 18, with the exception of the figures for his margin of
The testimony on behalf of defendant is to the effect that two contracts had been entered into on January 18, 1933; that the company had agreed to give the plaintiff the benefit of any spread of margin on account of the fiuctua
This case is tried ele novo, as provided in section 20-1925, Comp. St. 1929. All of the evidence is not set out in this opinion. The foregoing statement of facts is sufficient for an analysis of this case.
The defendant contends in this court that the evidence is insufficient to warrant the decree and judgment of the district court, and that plaintiff has failed to prove his case by a preponderance of the evidence, as provided by law. The plaintiff was seeking to prove a contract dated January 30, 1933, which he claimed was either lost or taken by an agent of the defendant company. The evidence as to the existence of the contract was given by
The plaintiff has not proved the existence of the contract of January 30, 1933, by a preponderance of the evidence. There is nothing to show by this evidence that the plaintiff made a diligent search for the contract for which he contends. While an honest and diligent search is sufficient, there is no reasonably certain proof in this evidence of the loss of the contract of January 30, 1933. To determine whether an alleged contract, which is the basis of a suit, exists in fact might be, and often would be, to determine the only fundamental issue of fact in the suit. No definite and well-established rule can be laid down as to just the amount of diligence required in searching for a lost instrument, but rules of evidence must be adopted for practical purposes in the administration of justice. The extent, of the rule is governed in some measure by the circumstances and a consideration of all the evidence in the case.
In 2 Jones, Commentaries on Evidence (2d ed.) p. 1492, it is said: “When it is sought to introduce a copy of a writing, the basic element of proof must necessarily be that the original document, deed, or other instrument, was at one time in existence, and this necessarily involves proof of its genuineness or execution. In the absence of such proof the rest must fall to the ground. It is not sufficient to prove the loss of the document of which the copy or other evidence is about to be given; it is absolutely essential to prove that a deed or document executed or signed
In Dempster Mill Mfg. Co. v. First Nat. Bank of Holdrege, 49 Neb. 321, 68 N. W. 477, this court held: “Parol testimony is not admissible to prove the contents of a written document until its absence is accounted for.” And in Miksch v. Tassler, 108 Neb. 208, 187 N. W. 796, we held: “To entitle plaintiff to findings and decree in his favor in a trial de novo in this court, it must appear under the pleadings and from the evidence preserved in the bill of exceptions that the material facts charged in the petition are supported by a fair preponderance of the evidence.” In Pierce v. Miller, 107 Neb. 851, 187 N. W. 105, it was held: “Where a party affirmatively pleads the existence of a fact material to the issue, he thereby assumes the burden of proving such fact.”
In each of the cases cited by the plaintiff, relative to the introduction of secondary evidence to prove the contents of a lost instrument, it is shown conclusively that a reasonably diligent search had been made for such instrument, and, further, that the existence of such lost instrument was shown as if the instrument had been in court.
The decree of the court found that the plaintiff and defendant entered into two written contracts on or about the 18th of January, 1933, one providing for a private service station lease, and the other for a private station license agreement, and fixed the intention of the parties as contended for by the plaintiff, relative to the margin of profit in said contract; found that the plaintiff had paid the amount of $200 due on the chattel mortgage on the equipment in the station, and found further that the defendant
The contention that the objection that no sufficient and proper foundation had been laid was not ample, for the reason that it did not specifically point out the objection to the testimony, is not well taken. The general objection to the admission of evidence as incompetent, irrelevant and immaterial, and no sufficient and proper foundation laid, relative to a lost instrument, as disclosed by the evidence, is sufficient to notify the court and counsel of the reasons for objecting.
The judgment of the district court is reversed, and such court is directed to enter judgment for the defendant and against the plaintiff in the sum of $1,244.26.
Reversed.