51 Neb. 272 | Neb. | 1897
The city of Beatrice recovered judgment in this case in the district court of Gage.county on a verdict in the sum of $24,545.14 as against all the plaintiffs in error. As it will be necessary to quote from the pleadings and instructions, we shall give the parties the respective designations under which they were referred to in the district court. In the petition.it was alleged that Charles H. Godfrey and A. J. Meals had constituted a partnership firm throughout all the transactions described; that on September 12, 1891, said firm entered into a contract with plaintiff for the putting in of a system of wells and appurtenances, including a pipe line, pumps, an engine, a condenser, a boiler, and other machinery, and guarantying said well system to continue supplying not less than two millions of gallons of water per day continually thereafter from the date of the completion of said contract by said Godfrey and Meals. The defendants Long, Wrede, Matthews, and Walker were joined as defendants by reason .of their contract of guaranty, the conditions of which were stated in this language; “If the said Godfrey & Meals shall well and truly keep and perform all the terms and conditions of said contract on their part to be kept and performed, including any and all future changes or
In the contract with Godfrey & Meals, which was made a part of the petition as an exhibit, there were these provisions: “It is mutually understood and agreed that the parties of the second part shall furnish all materials, tools, and labor to put in his system of wells complete and demonstrate to the satisfaction of the mayor and city council that said wells will give and furnish a daily supply of at least two million (2,000,000) gallons of water each twenty-four hours before any installment -of the above consideration shall be paid by the party of the first part; and provided further, in -case of the failure of the parties of the second part to find or secure that quantity of water, the party of the first part will relieve the parties of the second part from a further compliance with their
The second instruction given to the jury was in this language: “If you find for plaintiff, from the evidence and the law as given you by the court, the amount of damages which plaintiff! is entitled to recover from the defendant or defendants against whom you find is the sum of money paid by plaintiff to the defendants.Godfrey & Meals under the contract set out in the petition, which is admitted to be $20,992, with interest thereon at the rate of seven per cent per annum from the time said Godfrey & Meals
Reversed and remanded.