59 Neb. 141 | Neb. | 1899
This case was before us and decided at á prior term. See Hayden v. Frederickson, 55 Nebr., 156. Subsequently a trial was again had in the district court, which terminated in a verdict in favor of plaintiff, and from the judgment entered thereon the defendants have prosecuted' error.
It is argued by counsel for defendants that the judgment is erroneous, because it was not shown that the ■ patterns had been delivered to and accepted by the defendants. This question was presented upon the former - hearing, and it is contended by plaintiff that the decision then rendered is slave decisis. The rule is that the determination of questions presented to this court in reviewing the proceedings in a cause in the district court becomes the law of the case for all subsequent proceedings, and, ordinarily, will not be made a subject of re-examination. See Coburn v. Watson, 48 Nebr., 257; Fuller v. Cunningham, 48 Nebr., 857; Omaha Life Ass’n v. Keltenbach, 55 Nebr., 330; Mead v. Tzschuck, 57 Nebr., 615. And this rule applies, not only to all points actually decided, but to all questions presented by the record and necessarily in
To entitle plaintiff to maintain an action like the present, for goods sold and delivered, it was necessary that it be shown that the patterns were delivered to the defendant. The contract specified or recited: “Nicholas Prederickson has this day sold and delivered to Hayden Bros, a stock of linens * * and all patterns that are staple and down to date.” There is in the record before us evidence tending to show that the defendants were in possession of plaintiff’s goods at the time the contract in question was entered into, which, if true, relieved him from formally tendering and delivering the patterns to the purchaser, See Robison v. Uhl, 6 Nebr., 328; Uhl v. Robison, 8 Nebr., 272; Tiedeman, Sales, sec. 96 and cases there cited.
It is insisted that the title to the patterns did not pass to the vendees until they were invoiced; hence there can be no recovery. The contract of sale stipulated that an inventory of goods should be taken, which was to determine what patterns were staple and doAvn to date. It Avas within the contemplation of the parties that each should join or assist in the making of such inventory, or at least be given an opportunity so to do. The evidence discloses that the defendants refused to invoice the patterns, claiming that they did not meet the requirements of the contract. This constituted a waiver of the right of defendants to participate in the inventory. See Woodworth v. Hammond, 19 Nebr., 215. The defendants, under
Exceptions were taken to the fourth and sixth instructions given by the court on its own motion, which are as follows:
“4. The burden of proof in this case is upon the plaintiff, and, before he can recover, he must satisfy you by a preponderance of the evidence that the patterns sold and inventoried to defendants, and for which he seeks to recover in this action, complied with the terms and conditions of the contract sued upon, — that is, that said patterns so sold and inventoried to defendants were staple and down to' date. If plaintiff has so satisfied you, it will then be your duty to return a verdict for plaintiff for such sum as under the terms and conditions of said contract and the'evidence you find to be due. If plaintiff has failed to satisfy you, your verdict will be for the defendants.”
“6. The only question for your consideration in this case is whether or not the patterns sold defendants -by plaintiff complied v/ith the terms and conditions of the contract introduced in evidence, — that Is, were staple and down to date; and, in determining this question, you must look solely to the evidence that has been introduced by the parties, and from this evidence determine this question.”
These instructions submitted to the jury the single question whether the patterns were “staple and down to date,” and withdrew from the consideration of the triers of fact the issue whether there had ever been a delivery to the defendants of the patterns in question. Manifestly this was error. The defendants were entitled to have this point passed upon by the jury.
The following instruction was given at the request of the plaintiff below: “The court further instructs the jury that it is your duty to consider the opinion and expert evidence in this case the same as the evidence of other witnesses. However, the court further instructs you that
Reversed.