50 Neb. 760 | Neb. | 1897
This was an action below in the district court for Dawson county upon a note for f650 executed by the defendants in error to W. J. Simmons and J. M. McIntosh, bearing date of October 22, 1888, payable thirty months after-date, with interest at eight per cent, payable semi-annually. Defendants answered admitting the execution of the note sued on, but alleging that the same was given in part payment for a certain stallion purchased of the said Simmons and McIntosh upon the following written warranty:
*761 “Overton, Nebraska, October 22,1888.
“For and in consideration of the sum. of thirteen hundred dollars, paid by one note of $650, due eighteen months after date, and one of equal amount due thirty months after date, at eight per cent interest, we bargain, sell, and deliver, and have sold and delivered one registered,, finely bred English shire horse called ‘Mistake’ to Lot G. Carr, G. H. Whiteman, and Abbie P. Lincoln, equal owners, of Overton, Nebraska, and we warrant said horse to be a foal-getter if properly cared for.
“W. J. Simmons.
“J. M. McIntosh.”
It was further alleged that the said Simmons and McIntosh, in order to induce defendants to purchase the said stallion and execute the said note, exhibited to them a false and fictitious pedigree by which said stallion was represented to be a purely bred English shire horse, and that the defendants being inexperienced in like matters purchased the said stallion and executed the said note, relying upon said statements and warranties; whereas in truth and in fact said stallion was not a purely bred English shire horse; that he “was not a registered and pedigreed animal,” and was not a foal-getter, but was, as the said Simmons and McIntosh well knew, of no value whatever. To the foregoing answer the plaintiff replied as follows: “That the plaintiff, on the 4th day of March, 1892, filed his petition in the district court (said cause before that having been appealed from the county court of Dawson county) against the defendants, who were the same defendants as in this action, said suit being upon said promissory note for six hundred fifty dollars ($650). so given at the time the note in suit was given and which matured eighteen (18) months after its date. In said action the plaintiff herein was plaintiff and the defendants herein were defendants; that to said petition the defendants herein filed their amended answer on the 4th day of March, 1892, in which said answer the defendants in said action, they being the same defendants as in this action,
The objection to the evidence offered was based upon the following grounds: (1.) No such issue was presented in the county court where the cause originated and from whence it. was appealed to the district court. (2.) Said evidence is irrelevant and immaterial. (3.) The issues in this cause are not identical with those tried in the former suit. (4.) The judgment mentioned in the record offered in evidence was, by means of a petition in error, removed to this court and is still pending and undetermined herein. There is, so far as we can discover from the record and
Reversed.