95 Neb. 194 | Neb. | 1914
From a judgment of the district court for Custer county, for damages sustained by plaintiff by reason of the breach by defendant of a contract to employ plaintiff upon his ranch, defendant appeals.
The suit as originally commenced was against the defendant John E. Myers and one Edwin F. Myers. It appears from the transcript that at the trial the jury were instructed to find i.n favor of defendant Edwin F. Myers, for the reason, as stated, that the undisputed evidence showed that defendant, Edwin F. Myers, was the agent of John and had no personal interest in the ranch. The verdict and judgment were against defendant, John E. Myers, and'the appeal here is prosecuted by him alone.
But two questions are presented by defendant in his brief and argument: First, that the petition does not state a cause of action; and, second, that the court erred in overruling his motion to retax costs. We will consider these two assignments in the order named,
The complaint made to the petition is that the letters do not contain an acceptance that is definite, unqualified and in the terms of the offer. In this we think counsel is in error. After plaintiff had received and answered two letters, he received a third letter, the opening sentence of which is: “We still want you to come, so come ahead.” The letter then proceeds to describe the location of the ranch and the best way to reach it. He was told that he
It is next urged that defendant did not sign any of the letters; that, while Edwin F. Myers in writing the letters used the pronoun “we,” no allegations are made in the petition as to who is meant by that word, and that" there is no allegation in the petition that defendant had anything to do with the employing of plaintiff; that the petition contains no allegation which made defendant a party to the contract except what might be inferred from the allegation that “Jolin E. Myers and Edwin F. Myers are managers of what the defendants call the Myers Ranch.” This, it is contended, is not sufficient; that it does not say that John E. Myers owned the ranch or owned the business; that it does not charge that John E. and EdAvin F. are partners in business, or that they are liable for any contract in behalf of any owner of the business, and is insufficient to charge John E. Myers as an undisclosed principal represented by Edwin F., as ■ agent. If the judgment depended for support upon the petition alone, we might have some hesitancy in sustaining it, but the principal deficiency in the petition, viz., an allegation as to the true relation existing between defendant and Edwin F. Myers, is cured by the averments in defendant’s answer. The answer alleges: “That the John Yaughn referred to in the correspondence set out in plaintiff’s petition was and is the son-in-law of said plaintiff, and, acting for him on his behalf and as his agent, sought em
In taxing the costs under the judgment rendered by the court, the clerk taxed the jury fee, $5, and trial fee, $1, to the defendant. Defendant by proper motion asked tliat these costs be retaxed and taxed against plaintiff. This motion was overruled. In this we think the court erred. Plaintiff voluntarily went into court and demanded a trial and judgment upon his cause of action. Defendant by the process of the court was compelled to appear. Plaintiff could not obtain his judgment without a trial. He could not have a trial without a jury, unless the intervention of a jury Avas waived, not only by himself, but by the defendant. No cases in point are cited, and we have neither the time nor inclination to look for them, but as a case of first impression it appears to us quite clear that these tAvo items were costs made by plaintiff, and, under the judgment of the court, that each party should pay his OAATi costs, they should have been taxed against the plaintiff.
The judgment upon plaintiff’s cause of action is affirmed; upon the question of costs it is reversed, and the cause
Reversed is to costs.