No. 8072 | Neb. | May 19, 1898
In this case there has already been prosecuted proceedings in error in this conrt for the reversal of a judgment rendered by the district court of Dawson county. (Darner v. Daggett, 35 Neb. 695" court="Neb." date_filed="1892-11-16" href="https://app.midpage.ai/document/darner-v-daggett-6648012?utm_source=webapp" opinion_id="6648012">35 Neb. 695.) There was a reversal of said judgment, because there had been admitted in evidence a statement of a witness as to his estimate of the difference in value of the goods in the condition they were in as compared with what they wonld have been worth had they been as represented. This ruling was because of the fact that in the petition no claim had been made for damages, because of a misrepresentation by the vendor of the quality of his goods. The gist of the action, it was held, was for the recovery of damages from defendant for falsely representing that the invoice, on the' faith of which plaintiff purchased the stock of goods, was based upon the Chicago market, and errors in the footings of said invoice, and a shortage of the goods,
The petition in error of the judgment defendant contains an assignment that the verdict was not sustained by the evidence, but we shall not enter into a detailed statement for the purpose of showing that this contention is unfounded. The errors urged with reference to the introduction of evidence proceed upon the assumption that there were the same errors which caused the reversal of the first judgment. In this view we cannot concur. It is true the district court refused to strike out statements of witnesses as to the goods being old or new, and it may be admitted that, over objections, testimony of that character, was permitted to go to the jury. But it was in evidence, likewise, that there was a difference in the invoice price of such goods dependent upon when they had been manufactured. For instance, one witness said of certain stoves that they were in use when he was a small boy, and that he had never seen any of that kind in stock or in use since he was a boy. When there was an attempt to show that these stoves were old, unserviceable, broken, rusty, and unsalable, the offer was rejected. There was no proof of damages because of defects of the character above indicated, and that there might be no misapprehension the following instruction was given to the jury:
“8. There are no allegations in the petition that the goods in controversy were of an inferior quality or character than as represented, and you will disregard any evidence bearing on that matter.”
It .is insisted that there was error in certain instructions, but the argument on that head is met by the above discussion of the evidence as to which objections were urged. In addition to these criticisms of the instructions it is objected that by one of them the jury was told to consider all of the evidence, and that this. instruction justified the consideration of that which should not have
Affirmed.