46 Neb. 812 | Neb. | 1896
Defendant in error filed his petition in the district court alleging: “That Fox, Canfield & Co., on the 1st day of May, 1882, and at the times of the purchases and transactions hereinafter stated, was a partnership firm doing business in the state of Nebraska, in Stanton county and adjoining counties; that the sole individual members of said partnership were and are the defendants George Fox, S. S. Can-field, and H. C. Brome; that the defendants, as such partners, in the partnership name, on or about the months of
“ Count 2. Plaintiff, for further cause of action against the defendants, states that Fox, Canfield & Co. are a partnership firm carrying on business in Stanton county and adjoining counties in the state of Nebraska, composed of George Fox, S. S. Canfield, and H. C. Brome; that on or about the 1st day of July, 1885, the matters in controversy between plaintiff and defendants, being the amount set forth in Exhibit A, hereto attached, were, by agreement by plaintiff and defendants, referred to Knox Tipple and J. B. Walker as arbitrators, with authority in said arbitrators to consider, ascertain, and settle all matters of account between plaintiff and defendants, and to find the balance due upon such settlement; that on or about the 20th day of July, 1885, the said Knox Tipple and J. B. Walker, after full and thorough examination of matters referred to them as said arbitrators, found that there was due and owing from defendants to plaintiff the sum of $734.52, except the amount of certain freight bills not promised, which is now due and wholly unpaid; that the balance so found
A motion was filed to strike from the petition all of the first count as irrelevant and redundant, immaterial and prejudicial, which motion was denied by the court and an exception was taken to the ruling. Thereupon an answer was filed consisting of a general denial. There was a trial to a jury, with a verdict and judgment for the plaintiff below in the sum of $169.57. No bill of exceptions having been preserved in the case, but two assignments of error are relied upon for reversal, namely:
“1. The verdict and judgment are contrary to law.
“2. The court erred in overruling the motion to strike out the first count of the petition.”
Under the first assignment it is argued that the petition fails to state a cause of action. The record fails to disclose the count under which the recovery was had, or whether under both or but one. Therefore, if either count contains sufficient facts to support the verdict and judgment, the first assignment is not well taken; It will be observed that the plaintiff below, for his first cause of action, alleges, in effect, that he sold and delivered to the defendants timber, bridge and building materials of the reasonable value of $1,501.38, payable on delivery; that plaintiff paid freight for defendants, at their request, the sum of $132.50, no part of which has been paid except $1,026.92, and that there remains due the plaintiff $606.92 debt, and $125.95 interest. These averments are sufficient to constitute a cause of action and to authorize a judgment in plaintiff’s favor for
Doubtless, a verdict must not exceed the sum prayed for in the petition. If it does, the objection should be raised in the motion for a new trial, as that the verdict exceeds
By reference to the petition it will be noticed that the items constituting plaintiff’s first cause of action were submitted to arbitrators chosen by the parties, and the arbitrators made an award, and the second count is predicated thereon. It is claimed that the first count of the petition should have been stricken out for the reason the original claim is merged in the award, and is thereby extinguished. This court has held that an award of arbitrators, unless impeached for. fraud or mistake, is a bar to an action on the original claim. (Bentley v. Davis, 21 Neb., 685.) To the same effect see Groat v. Pracht, 31 Kan., 658, and cases there cited. But it does not follow that there was error in denying the motion to strike. The plaintiff had a right to elect upon which count of the petition he would rely. The motion should have been in the alternative to strike from the petition the first count, or require him to elect as to the one upon which he would proceed to trial. (Keens v. Gaslin, 24 Neb., 310.) A motion may properly be overruled which cannot be allowed in substantially the same terms as requested. {McDuffie v. Bentley, 27 Neb., 380.) The judgment is
Affirmed.