85 Neb. 358 | Neb. | 1909
This case is before us for the second time. On the first trial in the district court the plaintiff had judgment, which judgment on appeal to this court was reversed on the ground that the evidence was not sufficient to sustain the verdict. Reeves & Co. v. Curlee, 76 Neb. 55. In the opinion on the former hearing Mr. Commissioner Ames pointed out the weakness in plaintiff’s evidence. On a retrial in the district court plaintiff strengthened his case by furnishing testimony covering the jmint indicated by the commissioner. This additional testimony was furnished by plaintiff himself and by Ids brother. Plaintiff again had judgment, and defendant again appeals.
It is now urged by defendant that plaintiff should not be permitted to reap the benefit of this new evidence. Counsel for defendant argue that it would be “playing” with the court to permit a party to try his case and then after suffering defeat, and after the court had indicated the weakness in his case, to permit him on a second trial to “change his testimony” so as to meet the views of the court. On the former trial the evidence was very weak on the one important point in the case, viz., that the plaintiff had solicited or was instrumental in bringing about the trip of Perry Ginther, of Ginther Brothers, to Lincoln, for the purchase of the machine, for sale of which plaintiff claims commission. On the last trial plaintiff testified unqualifiedly that he not only suggested, but urged, Mr. Ginther to take the trip to Lincoln to purchase a e/tw machine. In this he is corroborated by his brother. A a reful examination of the testimony taken upon the first trial, which is again in evidence, fairly sustains plain
It was argued at the bar that, even if plaintiff was entitled to a verdict, the verdict was excessive, but no ' such error was assigned in the motion for a new trial, nor is any such error assigned in the brief of the defendant filed herein, hence that question cannot be considered.
It is argued that the court erred in refusing to give instruction No. 1 requested by the defendant. This was a peremptory instruction to find for defendant, and the court did not err in refusing'it. It is also urged that the court erred in giving instructions 2 and 3 given by the court on its own motion. If there had been a verdict for defendant, plaintiff might have predicated error upon instruction No. 2, but there certainly was no error in that instruction of which defendant can complain. Instruction No. 3 reads: “The word ‘solicit,’ as used in the contract sued upon, means to seek for, to endeavor to obtain. It is therefore incumbent upon the plaintiff to prove, by a preponderance of the evidence, that he sought for and éndeavored to obtain as purchasers from the- defendant, the said Charles Ginther, John Ginther and Perry Ginther, or some one of them. It is not necessary for the plaintiff to show that the purchasers of the engine made a trip to Lincoln solely upon the solicitation of the plaintiff; but, if you find from the evidence that the sale of said engine was made by the defendant to the Ginther
An examination of the record convinces us that the case does not present any ground for relief by this court. The judgment of the district court is therefore
Affirmed.