65 Neb. 370 | Neb. | 1902
On the 6th day of February, 1899, Chris Thomsen filed his.petition in the district court for Dodge county
1. The only assignment of error presented in plaintiff’s brief and argued orally by its counsel upon the hearing, is, that the court erred in overruling its motion and in not directing or instructing the jury to return a verdict in its favor. This requires us to first determine whether the evidence Avas sufficient to establish the contract or agreement, as alleged in the defendant’s petition. On the trial, the defendant and his brother, John Thomsen, who Avas present at the time the agreement was entered into, both testified as to the matter, and their evidence Avas sufficient to establish the fact that the contract Avas madé precisely as it Avas set forth in the petition. John Bunt testified for the plaintiff herein, and partially disputed the evidence of these two witnesses; yet he persisted in saying that he did not remember what was said in relation to the repurchase of the stock. Therefore the evidence was amply sufficient to establish the existence of the contract, and that question was properly submitted to the jury.
2. It is shown by the record herein that John Bunt was, by a resolution of the board of directors, made the presi
3. The plaintiff contends that the contract is void under the statute of frauds. This question was not raised by the pleadings and is not available in any event, for the reason that the contract was fully performed on the part of the defendant, and was not, therefore, subject to that defense. We hold that the questions at issue were properly submitted to the jury; that the verdict is sustained by sufficient evidence, and we therefore decline to disturb it.
4. Upon the contention of the defendant, contained in his cross-petition in error herein, we hold that, it having been fully established that John Bunt in making the contract and agreement with him acted for and on behalf of the plaintiff, — that his acts were binding upon it, — it necessarily follows that such action and agreement created no individual or personal liability against him. Therefore the court did not err in dismissing the action as to him. We decline to interfere with the ruling of the court upon the question of the allowance of interest upon the verdict. Having sufficiently discussed the propositions presented for our consideration in the record, we recommend that the judgment of the district court be affirmed.
Affirmed.
31 Am. Hep., 140.
Am. St. Kcp., 437.