86 Neb. 1 | Neb. | 1910
It was alleged in the petition in this case that both plaintiff and defendant Baum Building & Realty Company are corporations duly organized; that on the first day of February, 1902, plaintiff sold to the W. R. Bennett Building Company, another corporation, an engine of the value and price of $1,375; that on the 13th day of April, 1903, plaintiff procured a judgment against said building company for the sum of $1,455.20, which is unpaid and is still in force; that, for a valuable consideration moving to defendants, they assumed and agreed to pay the said claim of plaintiff against the building company, together with interest thereon, and for which demand had been made and payment refused; that said sum of $1,455.20 is due, and for which 'judgment is demanded. The answer is a general denial. The cause Avas,tried to a jury, and upon the conclusion of plaintiff’s evidence defendants moved the court for an order striking out all the testimony of the principal Avitness for plaintiff, assigning the folloAving grounds: “The defendants now move to strike out all of the testimony of the witness Bennett in relation to the defendants or either of them having assumed or agreed to pay the debts of the Bennett Building Company, or the W. R. Bennett Building Company, for the reason that the testimony of the Avitness Bennett shows that the alleged statement of Mr. Baum, one of the defendants, in regard to this matter was made at the time of the agreement marked exhibit 1, and is shown by the evidence to be a part thereof, and for the reason that the verbal statements, or verbal understandings of the parties at the time said agreement Avas written or entered, cannot now be used for the purpose of altering and modifying or in any sense amending the written
As above appears, the motion to strike but the testimony of plaintiff’s principal witness was based upon the ground that there was a written contract between the W. R. Bennett Building Company and defendants by which the Avhole of the transaction was set out, except the fact of the assumption by defendants of certain debts OAving by said company. It wa* held by the trial court that the written contract between the parties to it was binding and conclusive, and that no testimony could properly be
The question remains as to whether the court, after plaintiff rested, erred in then instructing the jury to return the verdict for defendants. If the instruction was not erroneous, had the evidence not been stricken out, it is clear that the order first made could not be held to have been prejudicial to plaintiff. The averments of the petition are that plaintiff sold the engine referred to to the W. R. Bennett Building Company; that defendants, for a valuable consideration, agreed and promised to pay the debt thereby created, and that they had failed to do so. The answer being a general denial, it devolved upon plaintiff to prove the sale, as in a suit by a vendor against a vendee; that the purchase price had not been paid; and that defendants assumed and agreed, for a valuable consideration, to pay the debt. The evidence, we think, tends to show the agreement on the part of the defendants to pay for the engine; but it is nowhere shown that plaintiff ever sold the property to the W. R. Bennett Building Company, or that that company was indebted to plaintiff therefor. Had the court overruled defendants’ motion
The judgment referred to in the petition was introduced in evidence, but the pleadings upon which it was based were not, and it is nowhere shown upon what cause of action it was founded, and it cannot be considered as supplying the defect.
Such being the condition of the evidence, the judgment will have to be affirmed, which is done.
Affirmed.