This suit was commenced in the county court of Gage county by the defendant in error against William Lamb, the plaintiff in error, and one J. B. Christopher, for the sum of $26.57, with interest thereon, on an account for goods sold and delivered. The court rendered judgment for the-amount claimed in favor of the plaintiff and against Lamb- and dismissed the action as to Christopher. The defendant Lamb appealed to the district court.
The plaintiff filed in the district court a petition demanding judgment on the same account, against Lamb alone.
1. By a general denial.
2. That the cause of action set forth in the petition is not the same sued upon in the court below, and that the parties are not the same as in the county court.
A trial was had to the court, with finding and judgment for the plaintiff for the sum of $26.25 and costs.
A motion for a new trial was overruled, and the defendant prosecutes a petition in error.
The first point relied upon for a reversal of the judgment is that the suit was not tried upon the same issue in ■district court as in the county court. It is well established that a case is to be tried in the district court upon the issues that were presented in the court from which the appeal is taken, with the exception of matters arising after the former trial. (O’Leary v. Iskey, 12 Neb., 136; Baier v. Humpall, 16 Id., 127; Fuller & Johnston v. Schroeder, 20 Id., 631.)
Was this rule violated in the case at bar? The cause of notion set up in the petition in the district court was the same as declared upon in the court of original jurisdiction. The action in the appellate court was based upon the identical bill of goods described in the petition in the county ■court, the only substantial difference in the petitions being that no recovery was asked in the district court against ■Christopher. The county court held that Christopher was not liable. The plaintiff was doubtless satisfied with that finding, for he abandoned the suit as to him in the district court. There was no change in the issue tendered by the plaintiff.
Counsel next urges that the proof fails to show that the plaintiff had not been paid for the goods. It is sufficient answer to this objection' to remark that no such question was tendered by the pleadings. If the defendant relied upon payment as a defense he should have pleaded it in his answer. This he failed to do. It was for him to allege
Is the judgment contrary to the law and the evidence? The plaintiff in error on the 18th day of June, 1887, was the owner of a book and stationery store in the city of Beatrice, and on that day he entered into a written contract for the sale of the same to James B. Christopher for the sum of $4,800. Of this sum $2,600 was paid by transferring to Lamb school land leases for 1,280 acres of Colorado lands, and by deeding to Lamb eighty acres of land situated in Smith county, Kansas, subject to a $200 mortgage. The remaining $2,200 the contract provided should be paid in two equal annual payments, the same to draw ten per cent interest until paid. In accordance with the terms and stipulations contained in the contract Christopher took possession of the stock and ran the store in his own name until January 24, 1888, when the entire business was sold to one Payne, who paid Christopher $160 in cash, gave him his note for $600, and executed and delivered to Lamb a note secured by a chattel mortgage on the stock for $2,200 and interest, the amount of the unpaid purchase money due from Christopher to Lamb.
During the time Christopher carried on the business one Stonebreaker, who had been a clerk for Lamb, had charge of the store and bought goods in Christopher’s name to replenish the stock. Stonebreaker, pursuant to instructions given him by Christopher, ordered the goods for the value of which this suit is brought. They were billed and shipped in Christopher’s name and went into the store.
The plaintiff claims that Lamb never in fact parted with the title to the stock of goods. That while the business was conducted in Christopher’s name, it was for the benefit of Lamb, and that the latter is liable in this action as an undisclosed principal for the price of the goods sold by the plaintiff. In the written contract entered into between
It is obvious that Lamb only agreed to convey and that he never parted with his title to the stock of goods. Christopher never paid any part of the $2,200 so as to entitle him to a conveyance. No bill of sale was ever made by Larn^b to Christopher. The proof shows it was agreed that Stone-breaker should remain in the store and retain the management and that he purchased the goods for the business after the contract was made. Lamb repeatedly told him to. see that the stock did not run down and to keep as many
The judgment of the district court is
Affirmed.