No. 5903 | Neb. | Jan 21, 1896
Plaintiff in error brought suit in the court below1 upon a promissory note for $1,296, purporting to be made by the defendants in error, bearing date January 1,1891, and payable April 1 thereafter, with interest at eight per cent. The defendants, for answer, admit the execution and delivery of the note, but aver that it was given in renewal of a note of $1,200 executed by the defendants as part consideration of three-fifths of the corporate stock in the Commercial Publishing Company, of Ogden, IJtah; that plaintiff, in order to induce the defendants to make said purchase, knowingly and falsely represented to them that said corporation was the owner of a franchise in the Western Associated Press of the value of $4,000; that the defendants relied upon said representations; that the same were false and untrue; and that the defendants have been thereby damaged in the sum of $2,000! The reply was a general denial of each averment of new matter contained in the answer. There was a jury trial, resulting in a finding that there was due the plaintiff from the defendants upon the note declared upon the sum of $1,425.60, and that there was due the defendants upon the counter-claim the sum of $1,389, and the amount of the plaintiff’s recovery was assessed at the difference between said amounts, to-wit, $36.60.
Thirty-six errors have been assigned, while but one has been argued in the brief of plaintiff. It relates to the rulings of the trial court upon the admission of testimony. All other errors assigned are regarded as waived and will not be considered by the reviewing court. (Gulick v. Webb,. 41 Neb., 706" court="Neb." date_filed="1894-09-18" href="https://app.midpage.ai/document/gulick-v-webb-6649306?utm_source=webapp" opinion_id="6649306">41 Neb., 706.)
Upon the trial evidence was introduced tending to establish the allegations of the counter-claim set up in the answer. The defendants, in making out their case, produced and read the deposition of one J. S. Painter, who, after-testifying that he and one Murphy, the last of November- or the first of December, 1889, which was prior to the sale-of the stock to the defendants, purchased of the plaintiff' Johnson six-tenths interest in the Ogden Daily Commercial, deposed in answer to questions as follows:
Q. State whether or not at the time, while negotiations were pending between yourself and Murphy, as parties of one part, and the plaintiff Johnson, as party of another-part, for the purchase and sale of this stock, any statements or representations were made to you by the plaintiff’ Johnson concerning the Western Associated Press franchise-possessed or owned by the Ogden Daily Commercial.
A. Yes, sir; there were such representations made. I had a number of conversations with Mr. Johnson in regard to the purchase of the paper. I do not remember just exactly when the first one was had. The second one was had, about November 20, 1889. I went into the office and. looked it over. Mr. Johnson was not in. I returned to the local editorial room. We went into the editor-in-chief’s-room, and had a talk about the paper.
Q. What I want to get at is any conversation between, yourself and Mr. Johnson about the franchise.
A. I told him I thought I could duplicate good material in the office for $2,000, and he says the franchise was ex-
Q,. What exclusive franchise did he refer to?
A. Associated Press franchise.
Q. As being owned and possessed by the Ogden Daily •Commercial?
A. He said so.
Q. Was the representation as to the paper owning and possessing this Associated Press franchise made to you more than once by Mr. Johnson?
A. It was made to me on two or three occasions. Every time we talked about the matter it was discussed, because I looked upon it, from what he said, as being the .most valuable part of the paper.
Each question was objected to at the time the same was propounded as being incompetent, irrelevant, and immaterial, and an exception was duly taken to the overruling of the objection. The assignment argued by plaintiff is based upon the admission of the testimony quoted above. He now insists that the objection to receiving the evidence should have been sustained, because proof of representations made by the plaintiff to persons other than the defendants does not tend to establish that the representations charged in the answer were made as therein stated. We think this position sound. The evidence was clearly inadmissible, and had the effect to mislead thejury. From the fact that the plaintiff made the representations to Painter testified to by him, the inference cannot be properly drawn that the same or similar representations were made by plaintiff to the defendants. As is stated in 1 Phillips, Evidence, p# 748*: “It is considered, in general, that no reasonable presumption can be formed as the making or executing of a contract by a party with one person, in consequence of the mode in which he has made or executed similar contracts
Reversed and remanded.