19 Neb. 69 | Neb. | 1886
On the first trial of this cause in the district coürt there was a verdict and judgment for the plaintiffs. The judgment was reversed on error in. this court. The case is reported in 16 Neb., 401. Upon the second trial there was a verdict and judgment for the defendant. The plaintiffs now bring the cause to this court on error.
Two principal errors are assigned:
1. As to the instructions. With other instructions prayed by the plaintiffs and given by the court, the following was also given: “ 8. If the goods in controversy actually arrived in Lincoln over a different line of road than that over which defendant ordered them sent (if he did so order), and the defendant, with full knowledge of
Plaintiffs in error claim that, after having given the above instruction, it was error on the part of the court to give the following, numbered 2 and 3, which were prayed by the defendant and given by the court: “ 2. You are instructed that if you find from the evidence that the defendant, at any time previous to the shipment of the goods sued for, gave plaintiff's agent, Whaley, orders to ship all goods ordered by the defendant of the plaintiffs over the Chicago, Burlington & Quincy railroad, and that such directions were not afterwards countermanded or waived, then it would be immaterial whether defendant directed this particular shipment to be made over that road, and if you find from the evidence that such directions were given by defendant, and disregarded by the plaintiffs, you will find for the defendant. 3. The plaintiffs seek to recover for goods sold and delivered to the defendant, and you are instructed that if the defendant directed plaintiffs to ship all goods ordered by him of them over the Chicago, Burlington & Quincy railroad, and the plaintiffs shipped the goods sued for over the Chicago, Rock Island & Pacific railroad, and if you further find that they were injured in transit, then defendant was under no obligation to take them, and you will find for the defendant, unless such instructions or orders had or have been waived by defendant.”
2. Is the verdict of the jury sustained by the evidence ? It appears from the evidence that at the date of the trial the defendant was, and had been for the preceding fourteen or fifteen years, engaged in the business of a retail grocer in Lincoln, buying largely at wholesale at Chicago and other markets; that for the period of one year and a half or two years prior to the date of the principal transactions involved in this controversy, say the middle part of the month of June, 1882, defendant was a constant customer of the plaintiffs, making purchases of groceries of them as often, if not oftener, than once in each month. These purchases had generally, if not always, been made by order and sample through one E. E. Whaley, a traveling agent or solicitor of the plaintiffs. It was the custom of
3 bbls. ex. C Sugar.
3 “ St. D A Sugar.
3 “ Gran. “
1 bag 52 Eice.
3 cases Arb. Coffee.
6 kits 12, 1, Bay Mkl.
6 “ 12,1, Med. “
12 “ 12,1, Wht Fish.
6 “ 12 Fam. “
1 Bx. 2 Halibut.
2 “ Star 81s candles.
1 Bbl. Schumacher’s Amber Graham.
This order was received by the plaintiffs on or about the fifteenth day of the said month, and the goods therein
By the eighth instruction, above quoted, the court told the jury, in effect, that if they should find from the evidence that the defendant instructed the plaintiffs to ship the goods over a specified line of railroad, but that they shipped them over another and different line, and the defendant, with full- knowledge of the condition of the goods, accepted the rice (being one of the items of goods in said plaintiff’s bill mentioned) after its arrival in Lincoln over the same road as the other goods,, though at a later date, then they were instructed that the defendant waived the shipping instructions, and could not refuse to take the balance of the goods, on the ground that the plaintiffs had violated shipping instructions, etc.
Accordingly, even without reference to the special find-
It is impossible to say to what extent the jury were misled by the submission to them of this special finding as it was submitted. They should have been directed to find •the presence or absence of the facts which the court in the general charge had told them would amount to a waiver of the shipping instructions. But, so far as their special finding is concerned, in view of the evidence, it is manifest that they simply differed with the court as to the effect of the acceptance of the rice by the defendant as matter of law.
It is not my purpose to quote the testimony from the bill of exceptions, but will content myself with saying that there is scarcely a conflict of evidence as to the acceptance by the defendant of the bag of rice, without protest or complaint on account of the route by which it had been shipped, with knowledge that all the goods had been shipped over the Chicago, Rock Island & Pacific railroad instead of the Chicago, Burlington & Quincy railroad, and that the goods, other than the rice,-had been caught in a severe storm on the line of said first named railroad, and greatly damaged, and of the extent of such damage. It is true that the defendant- testified on the trial that he did not think that'he knew of the damage to the other goods when he accepted the rice, but he declared that he would have accepted the rice just the same if he had known of the damage to the other goods. The testimony of several other witnesses to the facts as to the time when defendant in
The judgment of the district court is reversed, and the cause remanded for further proceedings in accordance with law.
REVERSED AND REMANDED.