The plaintiffs brought an action against the defendant in the district court of Saline county, upon a promissory note dated March 15, 1873, calling for the sum of $90, in eighteen months from the date thereof.
The defendant answered the petition of the plaintiffs, alleging first, that the note in question was given for a sewing machine which was warranted to be a first-class machine in all respects, but which proved to be utterly worthless and of no value whatever; second, the defend
The plaintiffs demurred to the fifth count of the answer, assigning as grounds therefor, that the facts stated therein constituted no defense to the action. The demurrer was overruled, to which the plaintiffs excepted. The plaintiffs thereupon filed a reply to the several counts, denying the facts therein stated.
On the trial of the cause the jury returned a verdict in favor of the defendant for the sum of $15, upon which judgment was rendered. The plaintiffs bring the cause into this court by petition in error.
The defendant insists, that even if the fifth count of the answer fails to state a cause of defense, yet, as the plaintiffs have filed a reply to the same, denying the facts therein contained, the error, if any, in overruling the demurrer, is thereby waived.
If a good defense* is defectively stated in an answer, and a demurrer thereto on that ground is overruled, the party demurring, in order to avail himself of his exception upon the ruling of the court thereon, must rest on his demurrer. If he reply he thereby waives his exception. But this rule has no application where the facts stated in the answer of themselves constitute neither a defense or counterclaim. And this rule is not in conflict with that laid down in Pottinger v. Garrison, 3 Neb. 223, in which the court say: “We are of the opinion that the pleadings contain substance sufficient to sustain a judgment upon a verdict.”
In the case at bar, the defense set up in the fifth count of the answer entirely fails to show a liability on the part of the plaintiff's. The contract set up is that of the agent alone, and so far as appears, was made in his name and the credit given to him. The promise made by him to endorse the amount due upon the note in question therefore does not affect the plaintiffs. The demurrer should have been sustained.
The fourth defense is equally untenable. The defendant in his direct examination testified that: “ Lyman Allen employed me to go with him to help sell machines. He said if I would go with him and help sell machines he would bear all expenses if we sold to the amount of $25, and would give me $2 for each machine we sold.”
Q. “ How much did you sell ?”
On cross examination he testified as follows:
Q. “What did he (Allen) say in connection with Farrar and Wheeler about employing you ?”
A. “ He didn’t say anything.”
It appears from the testimony, that Allen was selling machines on commission, and employed the defendant to aid him. There is not a particle of testimony tending to show that the defendant was employed by any authority from the plaintiffs, or that he supposed that he was selling machines for them.
As to the third defense, there is no proof whatever of the value of the extras purchased by the defendant. It appears that Allen represented them to be of the value of $10.
The second defense is not sustained by the testimony. C. S. Triplett testified: “It was in the spring of 1873, William Wren came to my place; he was selling machines for the company. He was acting for them as special agent, he said, under this Lyman Allen — selling machines for him, and came to talk something about trading horses, and so we talked about trading, and finally made a trade. I traded him a stallion which we valued' at $250 — he was a very fine horse — and I took a horse — I think it was $57, and he was to give me the difference, and he gave me one of these machines for the difference and counted it $90.” * * * * “He stopped me one evening and asked me if I would not loan him this machine, so he might sell it again, so he could send on that many more notes, as he was expecting to sell this machine by selling others, and said it would be an advantage to him to send on that, and as quick as he could get around to it he would fetch me another one— when he would be over in selling.” * * * * “Well, I kind of hesitated, and thought once I would not let him have it. I spoke to my wife about it, and finally
It is evident from this testimony that loaning the machine to Wren was a personal affair between C. S. Triplett and Wren, and therefore, the plaintiffs are not liable for the same.
The testimony as to the character of the warranty is vague and indefinite. In no view that we can take of the testimony can the judgment of the court below be sustained. The judgment is therefore reversed and the cause remanded for a new trial.
Reversed and remanded.