70 Neb. 678 | Neb. | 1904
Defendant in error, hereinafter styled the plaintiff, on October 9, 1901, filed in the district court for Adams county a petition upon two promissory notes; one originally for $3,573, on which there was alleged to be due, October 1, 1901, $2,321.44, and the other originally for $800, on which there was alleged to be due, October 1, 1901, $1.73. The defendant Davis answered, admitting the execution of the two notes, and alleged that both were part of the same transaction, and his only notes to the plaintiff; alleged an oral agreement that the interest should not exceed seven per cent, per annum; alleged an indebtedness by the plaintiff to himself of $6,065 for money had and received, in amounts and at dates set out in a
The first error urged in the brief is the last one. The allegations of the petition are that there are due on the notes $2,323.22 and ten per cent, interest from October 1, 1901. The first day of the term of court, at which the judgment was rendered, seems to have been February 16, 1903. The interest on $2,323.22, at ten per cent, per annum from October 1, 1901, to February 16, 1903, is $319.44, making the total $2,642.66. The verdict therefore is for the sum of $44.78 more than the amount alleged in the
The next complaint made in the brief is the refusal oí instruction numbered one asked by defendant. This instruction told the jury that it was their province to decide upon the weight of testimony; that it was to be harmonized, so far as could be done, and, in case of conflict, the jury were to decide which to believe, giving the usual tests. This matter was fully covered by the second instruction offered by the defendant, which was given by the court, and the giving of this instruction would have been a mere repetition. Its refusal was not error.
The next complaint is the refusal of instruction numbered four asked by defendant. This is not mentioned in the motion for new trial. It seems to relate to allegations in the petition, and the issues in this case are altogether in the answer and reply.
The next complaint is of instruction numbered one given by the court on its own motion. No complaint is made of this in the motion for a new trial and there is no occasion to examine it. 'The same is true with regard to instruction numbered two given on the court’s own motion.
Number three is complained of, in the motion for new trial, only on the ground that it fails to properly instruct the jury relative to the burden of proof. The instruction was that the burden of proof rests on the • defendant to show that the defendant expended the $1,050 at plaintiff’s request and on plaintiff’s behalf; that on the defendant also rested the burden of proof to show that he paid the additional $30 which was denied by plaintiff, and that the burden rested upon the plaintiff to prove proper application of the $620 to the payment of another separate note, as claimed by him. We see no error in this instruction.
The next complaint is of the giving of instruction one offered by the plaintiff. This is complained, of in the motion for new trial on the ground that there was no testimony as to a settlement. The instruction, in fact, told the
It is recommended that the defendant in error be allowed to remit from his judgment, within 20 days herefrom, the sum of $44.78, and, in the event of such remission, that judgment be affirmed for the sum of $2,642.66, and, in default thereof, that the judgment be reversed and the cause remanded for further proceedings according to law.
For the reasons stated in the foregoing opinion, the defendant in error is allowed to remit from his judgment, within 20 days herefrom, the sum of $44.78, and in the event of such remission, judgment is affirmed for the sum of $2,642.66, and, in default thereof, the judgment will be reversed and the cause remanded for further proceedings according to law.
Judgment accordingly.