48 Neb. 651 | Neb. | 1896
This was an action by the defendant in error against the plaintiff in error to recover for certain cattle sold and delivered by the former to the latter. The chief defense was payment. A trial resulted in a verdict for the plaintiff below for $365. Judgment was rendered accordingly.
It is contended that the verdict is not sustained by the evidence. It would be useless to review the evidence at length. There is a controversy between the parties as to what were the terms of the original contract of sale. Both parties agree that after the cattle had been shipped to South Omaha and there sold, a further controversy arose in regard to the settlement, and that some arrangement was made whereby a settlement was to be effected, and Lowe gave Vaughan a check for what he computed
The deposition of one Blanchard was offered in evidence and received over the objection of Lowe. It is contended, first, that no foundation was laid for the use of the deposition. There was no direct independent evidence that facts existed permitting the use of a deposition; but it appears from the deposition itself, as well as from the testimony of witnesses in the case, that Blanchard was a commission man doing business and living in South Omaha. There was cei’tainly no presumption that he was present in Harlan county at the time of the trial. The presumption is, on the contrary, that he was at the place of his residence and of his business. (Sells v. Haggard, 21 Neb., 357.) There is a further objection to the deposition on the ground that it was immaterial. This objection is directed to the whole deposition, and was not well taken if any portion of the deposition was relevant. Vaughn had testified that the settlement was effected upon the basis of the weight of the cattle at South Omaha. In his deposition Mr. Blanchard testified to such weights; and this became an important feature in ascertaining whether Lowe’s check was for the price of the cattle as finally agreed upon.
In rebuttal, a witness was called and permitted to testify that on the trial of the case in the county court Lowe had testified that he had the check, referred to in
Complaint is made of tbe giving of one instruction. Tbe record does not show that any exceptions were taken to the instructions, and for tbis reason they cannot be reviewed. It is true that there appears in tbe record a bill of exceptions containing evidence received on a motion to correct tbe record by making it show that proper exceptions were taken; and a motion for that purpose also appears; but there is no record of any order upon tbe motion and no exceptions were in fact entered.'
Judgment affirmed.