52 Neb. 184 | Neb. | 1897
The petition filed in the court below alleges, substantially, that plaintiff and defendant, during the summer and fall of 1889, were partners engaged in the buying and selling of horses, under the firm name of Hale & Sheehan, plaintiff furnishing the capital for the enterprise and the defendant his services and skill, the profits and losses to be shared equally; that on the 15th day of
“This agreement, made and entered into this 15th day of October, 1889, by and between D. J. Sheehan of the first part, and D. A. Hale, party of the second part, witnesseth: That the said D. J. Sheehan agrees to winter and care for thirty-nine head of horses and sixteen sucking colts, said horses being known as the Wilson horses, on the ranch of D. J. Sheehan and O. P. Sheehan, in Fremont county, Wyoming; and the said D. J. Sheehan further agrees to deliver said horses and colts to D. A. Hale, or his agent, at Casper, in stock-yards of F., E. & M. Y. B. Co., in Carson county, Wyoming, on the 15th day of May, 1890, and the said D. J. Sheehan further agrees to load on the cars of the F., E. & M. Y. B. Co. at Casper, Wyoming, twenty-two head of horses, being the largest of the horses known as the Wilson horses, now on the ranch of D. J. and C. P. Sheehan, in Fremont county, Wyoming, said twenty-two head of horses to be delivered on the cars on or before November 15, 1889, and shipped to D. A. Hale, at Humphrey, Nebraska; and the said D. A. Hale agrees to pay, or cause to be paid, to the said D. J. Sheehan, in consideration of his faithful performance of the conditions foregoing, the sum of ($425) four hundred and twenty-five dollars, payment to be made as follows: Four hundred and twenty-five dollars to be paid to the said Sheehan, or his order, on the delivery of the horses at Casper on the 15th day of May, 1890, and in case the said Sheehan shall draw an amount not exceeding $200 on the contract from Ottis & Murphey, bankers
In witness whereof, we have hereunto set our hands, at Humphrey, Nebraska, this 15th day of October, 1889.
“D. J. Sheehan.
"D. A. Hale.
“Signed, sealed, and delivéred in the presence of
“C. D. Murphey.’’
The petition further alleges, in effect, that in November the defendant converted to his own use a span of black Morgan mares belonging to plaintiff, of the agreed value of $200, and that it was mutually agreed that said sum should be applied by the defendant as part payment on said contract; that the time for the delivery of the horses was, by agreement of the parties, extended to June 15, 1890; that twenty-two head of horses defendant delivered to plaintiff as provided in said contract; that on said last named date plaintiff, at the expense of $35, went to Casper, Carson county, Wyoming, to receive from the defendant the remainder of plaintiff’s stock' of horses, and to perform all the conditions of said contract on his part to be kept. Yet defendant failed, neglected, and refused to deliver to plaintiff said horses, which were of the value of $2,000, but converted the same to his own use. The answer of the defendant admits the settlement and the execution of the contract as set forth in the petition; denies all the other averments in plaintiff’s pleading, and alleges substantially that defendant entered immediately upon the performance of the contract by taking charge of, herding, feeding, and caring for said horses in
The assignment in the petition in error relating to the insufficiency of the evidence to sustain the verdict, and those directed against the rulings of the court during the progress of the trial, are not available, since there is no authenticated bill of exceptions preserving the evidence adduced and the exceptions to the rulings of the court below. (Andres v. Kridler, 47 Neb., 585; Reuther v. Zimbleman, 50 Neb., 165.)
Complaint is made of the sixth and ninth paragraphs of the court’s charge to the jury, which are as follows:
“6. You are instructed that the execution of the contract set out in the petition is admitted, and that under the provisions of the contract the defendant was entitled to have advanced to him by the plaintiff the sum of $200 on January 1,1890, if he so desired.”
*188 “9. If you find from the evidence that the plaintiff has failed and refused to pay the defendant the sum of $200 due defendant on January 1, 1890, then defendant was released from any obligation to deliver said horses at Casper, Wyoming, and had the right to retain possession of the same until the amount so due was paid, and would be entitled to enforce his claims for such feed and care under the lien laws of the state of Wyoming, and if the defendant, in good faith, sold the horses in controversy under the lien laws of Wyoming to satisfy his claim for feed and care, then the plaintiff in this case cannot recover, and your verdict should be for the defendant, unless it appears that the property so sold was sold for more than enough to satisfy the amount due the defendant for care and feed, together with the reasonable, lawful costs of sale.”
It is claimed that the construction placed upon the written contract by the parties and set out herein is erroneous, in that the jury-were advised that it was incumbent upon plaintiff to pay defendant $200 on the contract on January 1, 1890, if the latter requested it. We cannot say that the construction adopted by the court was erroneous. Whether so or not might depend upon the evidence adduced on the trial, since if that disclosed the parties placed a particular construction upon their ambiguous agreement, it is entitled to consideration by the courts. (School District v. Estes, 13 Neb., 52; Rathbun v. McConnell, 27 Neb., 239; Paxton v. Smith, 41 Neb., 56; Woodard v. Baird, 43 Neb., 310; Davis v. Ravenna Creamery Co., 48 Neb., 471.) The contract before us is somewhat vague and uncertain in its provisions as regards payments. In the briefs on either side it is asserted that the parties have, by their actions and conduct, placed a construction upon the controverted clause of the agreement, but they disagree as to what (hat interpretation was, and we are unable to determine the same for ourselves owing to the fact that it is not permissible for the court to look into the document pur
It is urged that tbe seventh and eighth instructions given by tbe court on its own motion are faulty, because not based upon tbe evidence. Whether erroneous in that respect we are unable to determine for want of authenticated bill of exceptions, and for tbe same reason tbe assignments based upon tbe refusal of instructions requested by plaintiff áre unavailing.
No reversible error appearing in tbe record, tbe judgment is accordingly
Affirmed.