41 Neb. 540 | Neb. | 1894
On the 29th day of December, 1888, John A. Rollins duly executed and delivered to John J. Gillilan and Aldridge D. Kitchen a writing obligatory, in words and figures as follows:
“ I, John A. Rollins, of the city of Lincoln, Nebraska, for a good and valuable consideration, am held and firmly bound unto John J. Gillilan and A. D. Kitchen in the penal sum of five thousand (5,000) dollars, for the payment of which I bind myself, my heirs, administrators, and executors firmly by these presents, upon conditions as follows, to-wit: First — That I build the line of the Capitol Heights Street Railway Company on E street in the city of Lincoln, Nebraska, to Twenty-seventh street on or before May 1, 1889. Second — That I operate said railway for three years, from May 1, 1889, from said Twenty-seventh over said E street to the corner of Twelfth and O streets, in said city of Lincoln, giving at least one-half hour service from 7 o’clock A. M. to 7 o’clock P. M. each day, excepting Sundays, and on Sundays at least one hour
“ Witness my hand hereto subscribed this 29th day of December, 1888. John A. Rollins.”
John J. Gillilan and Aldridge D. Kitchen brought this suit on this contract against John A. Rollins in the district court of Lancaster county, alleging in their petition, in substance, that at and before the time of the execution of said writing by said Rollins they were the owners of certain real estate laid out in an addition to the city of Lincoln ; that the construction and operation of a street railway along and adjacent to their property and connecting it with the business portion of Lincoln would greatly enhance its value. For the purpose of procuring the operation and construction of such line of railway along and through their property the agreement quoted above was entered into between them and Rollins; that they were at the time engaged in the business of buying and selling real estate for profit; that they held the lots of their addition for sale; that they transferred and assigned to said Rollins forty-four shares of stock in said street railway company of the par value of $4,400 ; that Rollins did not complete the street railway on E street to Twenty-seventh on” or before May 1, 1889; that the service given by Rollins was not half hour service, but was very irregular; that the cars were not run on any schedule time, but would vary from one-half hour to six hours in making runs, and on many occasions the operation of the railway was wholly abandoned for days at a time; that on May 1, 1891, Rollins wholly abandoned and discontinued the operation of the railway; that by reason of Rollins’ failure to perform
1. The third error alleged is in the following language: “ The court erred in giving paragraphs 2, 3, 4, 5, and 6 of the instructions on its own motion.” An examination of the record discloses the fact that one of the instructions excepted to was properly given, and the other instructions will not be reviewed for the purpose of ascertaining if the court erred in giving them or any of them.
2. The eighth error alleged is in the following language: “Error of law occurring at the trial.” Under the well settled practice of this court, time and again announced, this assignment is too indefinite for review.
3. The fourth error assigned is as follows: “The court erred in refusing to give paragraph ■ 2 of instructions asked by plaintiffs.” That instruction is in the following language: “In this case you are instructed that if'you find from the evidence that there has been a substantial breach of the condition of the bond on the part of the defendant, then you will find for the plaintiffs and fix the amount of their recovery at the' sum of $5,000.” This instruction was framed upon the theory of counsel for plaintiffs in
4. The fifth error is assigned in the following language: ■“The verdict is contrary to the first, second, third, fourth, fifth, and sixth instructions of the court as given.” The first of these instructions was a statement of the issues on trial, and since the verdict of the jury can in no sense be said to be contrary to that instruction, and the assignment is that the verdict is contrary to all the instructions, the assignment must be overruled.
5. The sixth and seventh errors assigned here relate to a couple of questions propounded by the court to witnesses on the stand. It is said these questions were improper and immaterial. We do not think that they were either, nor that the district court committed any error whatever in asking them.
6. The first and second errors assigned are that the verdict is not supported by sufficient evidence, and is contrary to law. The testimony shows that Rollins did not complete the street car line by the 1st of May, 1889, as he contracted, but that it was completed some time about the 1st of June, 1889. The evidence as to the character of the street car service rendered was conflicting. The testimony of the plaintiffs in error tended to show that the cars were
Affirmed.