49 Neb. 90 | Neb. | 1896
James Frazier brought this suit in the district court of Douglas county against Edward P. Graham, alleging in his petition that plaintiff, on or about June 30, 1892, purchased of the defendant 220 head of fat cattle at the agreed price of four cents per pound, said cattle to be delivered by the defendant at any time at plaintiff’s election, on or before July 8, 1892; that plaintiff paid to defendant $600 as part of the purchase price, and the latter has since retained the same; that on July 4 and 6, 1892, the remainder of the consideration was offered and tendered to the defendant, which he refused to accept, and declined to deliver the cattle, or any part thereof, and that thereby plaintiff has sustained damages in the sum of $5,000, for which sum judgment was prayed. The defendant answered by a general denial, and pleaded an oral contract differing from the one set up in the petition, as to the number of cattle bought, and the date agreed upon for performance, and averred that plaintiff failed to appear and accept the cattle at the time and place for delivery, although time was'made the essence of the contract; wherefore defendant claims to be relieved from the terms of said contract. He also pleaded the statute of frauds, and in his answer tendered to the
The plaintiff, James Frazier, is a stock buyer residing at Columbus, Platte county. On the 30th day of June, 1892, he went to the farm of Edward Graham, the defendant, about one mile from Crestón, in the same county, and while there he entered into an oral contract with Graham for the purchase of the latter’s cattle, consisting of something over 200 head, at the agreed price of four cents per pound, payment of consideration, or all but $600 thereof, to be made at time of delivery of the cattle by the defendant at Crestón on a future date. There is a conflict in the testimony as to the exact time fixed by the parties for the delivery. That introduced by the plaintiff tends to show the agreement was that he was to accept the cattle at his option on a day not later than July 8, while the testimony on behalf of the defendant is to the effect that the limit for delivery was July 5. It is undisputed that plaintiff did not call to receive the cattle, nor did he pay, or offer to do so, the residue of the purchase price until in the afternoon of July 6, at which time he demanded the cattle, and the defendant refused to deliver them under the contract. The demand was renewed the next day. The verdict being in favor of plaintiff, on or prior to July 8 must be accepted by us as the period fixed by the parties for delivery, and hence the demand for the cattle was seasonably made.
Another controverted issue in the case is whether any part of the consideration was paid down. It appears that on the date of the purchase plaintiff and defendant went together to the Bank of Crestón and while there plaintiff
“Did the defendant Graham on the 30th day of June, 1892, accept a credit in the Bank of Crestón as a part payment of $600 at the time, upon the contract between him and the plaintiff for the sale and purchase of the cattle? Answer yes or no.
“The answer of the jury is ‘Yes.’ W. M. Dodge,
“Foreman.”
This finding being abundantly supported by the proofs, disposes of the contention of the defendant that there was no part payment of the purchase price at the time the contract was entered into. It should be stated that this draft in the ordinary course of business was paid, and the proceeds have been retained by the defendant. In his answer filed in this case he for the first time offered to refund the $600 to the plaintiff.
There is a conflict in the testimony as to what transpired on July 6 and 7 when Frazier demanded the cattle. He strenuously insists the refusal of Graham to permit him to take the cattle on either day was put upon the •sole ground that the delivery according to the agreement was to be made and the purchase money paid not later than July 5, and as the plaintiff had failed to comply with the contract on his part to be performed, defendant was relieved from all obligations to deliver the cattle. On the other hand, the contention of the defendant is that he gave an additional reason for his refusal, namely,
Criticisms are made in the brief of counsel upon the fourth paragraph of the charge and plaintiff’s fourth instruction, and to the action of the court in refusing defendant’s fourth request, but they cannot be considered because of the insufficiency of the assignments relating to instructions in the motion for a new trial. The assignments are to the instructions en masse,- — those given as well as those refused. It is the settled rule that an allegation of error to the giving or refusing of a group of instructions is bad unless well taken as to all included in such group. (Dempster Mill Mfg. Co. v. First Nat. Bank of Holdrege, 49 Neb., 321, and cases there cited.) The court’s charge consisted of nine consecutively numbered paragraphs. More than one of the instructions given by the court on its own motion were clearly proper. Especially is this true of the first three, which stated the
Error is assigned in the court’s permitting plaintiff to testify to a conversation had with the defendant a few days prior to June 30, the date of the sale, when he made an unsuccessful .attempt to purchase the cattle. The substance of this conversation as detailed by plaintiff was that he inquired of the defendant what was the lowest price he would take for the cattle, and received a reply: “I put them up until I can get four cents, and when you can give four cents you can buy the cattle; that is the least that will buy them.” Frazier declined to pay the sum asked, but subsequently, on June 30, agreed to do so. This testimony was entirely harmless. It related to negotiations which finally resulted in the contract of purchase, and that, too, at the price first asked by Graham, — four cents per pound.
Criticism is made upon the admission of testimony of plaintiff as to the market value of these cattle in South Omaha on the 6th and 7th days of July, 1892, the contention being that evidence of the value at Crestón, Nebraska, the place where the contract called for the delivery, alone was admissible for the purpose of fixing-the amount of recovery. Unquestionably as a general rule the measure of damages for a breach of a contract by the
Error is assigned in excluding Exhibit 8 from the jury. We are unable to determine whether this ruling is prejudicial or not, since the exhibit referred to is not preserved in the bill of exceptions. (Keens v. Robertson, 46 Neb., 837; Fremont Butter & Egg Co. v. Peters, 45 Neb., 356; Barr v. State, 45 Neb., 458.)
Complaint is made of the ruling of the court in admitting over the objection of the defendant the following telegram from the cashier of the South Omaha National Bank to the Bank of Crestón:
“July 7th.
“Bank of Crestón, Neb.: Gassman & Dudley will pay draft on them by James Frazier for purchase money for*97 '220 cattle at four cents, purchased from Ed. Graham. Cattle to be consigned to firm. You tender payment to Graham for Frazier. H. C. Bostrick,
“CasMer.
“Charge Gassman & Dudley.”
Evidence was introduced to the effect that when plaintiff demanded the cattle, he and his attorney, Mr. Reeder, informed the defendant — which was true — that arrangements had been made with the Bank of Crestón for the payment of the balance of the purchase price, at least one-half thereof to be paid in actual cash and the remainder in either Chicago or New York exchange; that if the defendant desired the currency for the entire amount instead of the drafts for a portion, plaintiff proffered to procure the same from a certain bank in Columbus, and that Graham thereupon stated he would as soon accept the drafts as money, if he were to let the cattle go; yet he absolutely and unconditionally refused to deliver the cattle, not because the currency was not at the time produced, but on the ground that the plaintiff had not called for the stock within the time fixed by the agreement. It is undisputed that plaintiff at neither time when demand was made had the money with him, but he was ready and willing to obtain the same, and would have done so if the defendant had desired it. The precise relevancy of the telegram copied above to. the issues in the case we fail to discover. It is certain, however, in view of the foregoing facts, and that the case was not tried upon the theory that the money was actually produced by plaintiff, but that the production thereof was waived by the defendant by his absolute and unqualified refusal to deliver the cattle, that the admission of the telegram could not have prejudiced the rights of the defendant. The jury could not, under the instructions, have failed to understand that unless they found such waiver the plaintiff was not entitled to damages. If the delivery of the cattle was refused upon the express ground that they were called for at too late a date,
There was no reversible error in the trial court making the following statements in the presence of the jury during the cross-examination of defendant’s witness, Fleming: “The court states in the presence of the jury that this line of examination has developed the theory of the plaintiff.” The judge did not say what he regarded to be the theory of the plaintiff, nor did he use language from which the views of the judge could be inferred, much less that the plaintiff’s theory of the case was the proper or legitimate one. The remark did not in the least discredit the witness before the jury, as counsel for defendant below contend. To us the sentence conveys no intelligible meaning, and manifestly no possible harm resulted from its utterance.
The record shows that plaintiff brought suit for the breach of this contract in Platte county on the evening of July 6, 1892, and summons was served on the defendant the next day. Subsequently, this action was instituted, and the former one was dismissed by the plaintiff. It is argued that the rights of the parties under the contract were fixed on the commencement of the first action, and that plaintiff could not thex’eafter affect a further breach of the contract by renewing the demand for a delivery of the cattle, and therefore it was error for the court to admit in evidence the conversations between plaintiff and defendant or plaintiff’s counsel had on July 7, or to instruct the jury that they might base their verdict upon facts tending to show a breach of the contract occurring after July 6. We have already determined that alleged errors in the instructions cannot be considered by reason of the insufficiency of the assignment in the motion for a new trial. A sufficient answer to the objection made to the testimony
Affirmed,