49 Neb. 567 | Neb. | 1896
This action was brought in the county court of Adams county by the plaintiff in error April 20, 1893. From a judgment for the sum of |391.70 the defendant appealed to the district court, wherein judgment was rendered on the verdict of a jury in his favor.
On the 12th day of February, 1892, plaintiff, Lininger & Metcalf Company, entered into a written agreement with W. H. Shellhammer whereby Mr. Shellhammer was appointed its agent for the sale of certain of its goods at Holstein and Norman. Among other undertakings of this agent under his agreement he was to be liable to the company for any damages that goods might sustain by reason
“guaranty.
“For value received the undersigned does hereby guaranty the faithful and full performance by the party of the second part to this contract of all the agreements and engagement therein entered into by the said party of the second part.
“Witness — hand and seal the day and date within-written. George T„ Wheat.”
On the trial there was introduced as evidence on behalf of Mr. Wheat a stipulation entitled as in this case and dated and filed October 11, 1893. It was in this language: “It is hereby stipulated and agreed by and between the parties hereto that there was due on January 1, 1893, from W. H. Shellhammer to the Lininger & Metcalf Company, this plaintiff, under the terms of the contract set out in plaintiff’s petition herein, the sum of three hundred and ninety-one and .70 dollars ($391.70), no part of which has been paid, and all of which is now due.” It is by this stipulation rendered unnecessary that the evidence showing what was due from Shellhammer should be discussed. That was admitted, in so far as Mr. Wheat was concerned, by this stipulation. The defenses in support of which evidence was introduced and as to which plaintiff asked instructions which were refused and embraced in the following propositions: (1) Want of notice to Wheat of the acceptance of his guaranty after its execution; (2) failure within a reasonable time after January 1, 1893, to give notice to Wheat of the default of Shell-hammer, and (3) want of such a consideration as would.
Reversed and remanded.