12 Neb. 440 | Neb. | 1882
The defendant in error sued the plaintiffs in error in the court below for a bill of goods amounting to $330.48, giving them credit “by lightning rods $100.00,” and
Exhibit “A.” Order for erection of rods. Mr. E. House, agent of Cole Brothers & Hart: Sir: Erect at your earliest convenience your Franklin lightning rods on my store building, points and ground rods, in accordance with the scientific rules as printed on the back of this order, and I agree to settle for the same upon, the
L. B. Williams.
The defendant in error, in and by his reply, denied that he was indebted to the said defendants in any sum whatever, admits that defendants have a just claim in the sum of one hundred dollars against him, which appears as a credit on the statement of plaintiff’s account filed with his bill herein, and which said sum he alleges to be-the consideration for’the sale of certain lightning rods and fittings mentioned in the answer of defendants, and existing by virtue of a certain verbal contract between the plaintiff and defendant’s agent, Hori'se, prior to the pretended written contract set up by the answer of the defendants. That as to the written contract pretended to be set forth in the said answer he denies that it is correctly set forth. “And plaintiff says that he never signed an agreement as set forth in said answer, and further says that he did sign a certain pretended written agreement between the parties concerning the said rods; but says that he was induced to sign the same through the false, wilful, and fraudulent representations and concealments of defendants’ agent, House, made with intent to defraud plaintiff, and on which plaintiff relied, to-wit: After the said verbal contract had been made, in which
The verdict was for the plaintiff for the amount claimed..
The instructions excepted to by the defendants are as follows:
6. On the other hand, if you find from the testimony in the ease that the plaintiff, being prevented by the temporary loss of his spectacles from reading said paper, applied to the agent of the defendants to read it for him, and thereupon said agent pretended to read the same, but did not read the same correctly, leaving out the prices, therein contained, and concealed from the plaintiff the fact that a contract as to price was incorporated in said paper, and the contract as made was for said lightning rods.
This instruction, should be read in connection with the one which immediately preceded it, which is as follows:
5. If the plaintiff signed such paper knowing its contents or having the means at hand of making himself acquainted therewith, which he declined or neglected to use, then he is bound by its stipulations, and can only recover the amount of Ms bill for goods less the amount due under the written contract for lightning rods.
These two instructions taken together very fairly express the law applicable to the enquiry before the jury. The enquiry was, what contract did the plaintiff and defendants, tM'ough their agent, House, make in regard to the lightning rods? It is admitted that the plaintiff signed his name at the foot of the paper, which contained a statement of the price of the rods at 37J cents per foot, etc. If he did this knowingly, or carelessly and negligently, and free from any act of bad faith or deception on the part of the defendants or their agent, he would be bound by it.
In one point of view the signing of a written instrument without reading it, because of the temporary loss of one’s spectacles, where the use of another pair could have been procured without much effort, or in such ease relying upon an interested party on the other side to read it, when one’s own friends or employees were near at hand, would be regarded as negligence, and the want of due diligence, in case it turned out that the paper signed was of a different character and import from that purporting to have been read and intended to be signed. But in this case the defendants are in no position to suggest the carelessness or want of diligence on the part of the plaintiff in relying on the good faith and truthful reading of their agent, even had his eye-sight been perfect or his spectacles at hand.
The point is also made by plaintiffs in error that the-verdict is not sustained by sufficient evidence. There is certainly a conflict of testimony. It was a matter of impossibility for the jury to believe all the testimony. It is not for this court to say which was the most probable statement, that of the plaintiff, or that of the witnesses for the defendants. It was peculiarly the duty of the jury to sift and compare these conflicting statements and arrive at the truth as best they could. And we cannot say that they are not fully sustained by the evidence in the conclusion which they reached.
The other point stated in the petition in error not being insisted on by plaintiffs in error in their brief, nor alluded to at the hearing, will be regarded as abandoned by them., The judgment of the district court is therefore affirmed.
Judgment Affirmed.