42 Neb. 649 | Neb. | 1894
The plaintiff in error sued the defendant in error to recover damages for the alleged failure by the defendant to
The court gave the following instruction: “If from the evidence you believe that the defendant was ready and willing and offered to deliver to the plaintiff the 900 bushels of wheat contracted for November 9, 1889, of like kind and quality as the sample shown plaintiff’s agents, Jensen <fc Leflang, and that the plaintiff, by its agents, refused to accept the same, then plaintiff cannot recover. Your verdict should be for the defendant.” The giving of this instruction is the first error assigned, the objection urged being that the instruction was not applicable to the evidence. The controversy on the trial turned upon the question whether the wheat tendered by the defendant was of the quality which he contracted to sell. The defendant received from the plaintiff $100 on the purchase money when the contract was made. We understand the point made by the plaintiff in regard to the instruction to be that it authorized a verdict for the defendant in case the jury should find that he offered to deliver the wheat according to contract, and disregarded the fact that the $100 had been paid; that is, the plaintiff claims that, even though the jury should find that the defendant was ready to perform, and that the breach was by the plaintiff, still the plaintiff would be entitled to recover back the $100. In Walter v. Reed, 34 Neb., 544, it was said, in regard to a sale of personal property: “The rule is that if a person has advanced money in part performance of a contract and then refuses to proceed, the other party being ready and willing to per
It is assigned that the verdict is not sustained by the evidence; but the brief, while referring to this assignment of error, simply characterizes the verdict as unjust and does not point out in what respect the evidence was insufficient. We have examined the evidence and find it conflicting as to the essential facts in dispute. The verdict cannot, therefore, be disturbed.
It is argued in the brief that the court erred in excluding certain evidence, but neither in the motion for a new trial nor in the petition in error is there any assignment sufficient to present the ruling complained of for review.
Affirmed.