65 Neb. 496 | Neb. | 1902
This case originated in justice court. The bill of particulars in effect alleges, among other things, that at the time of the sale hereinafter mentioned, the plaintiffs were the duly authorized agents of the defendant for the sale of engines, separators and appliances therefor; that, in pursuance of their said agency, they sold an engine, separator and appliances therefor to a third party, at the price of $2,500, for which said third party executed and delivered to the defendant their promissory notes, payable in instalments; that it was agreed between the plaintiffs and the defendant, that the plaintiffs should receive, as their commission for said sale, twenty per cent, of the price for which the said property ivas sold. Paragraph 5 of the bill of particulars was as follows:
“5. That on the 1st day’of May, 1899, there was still due the plaintiffs on account of their commission and for their services aforesaid, the sum of $271. That on or about the 1st day of May, 1899, one R. O. Adams, then
On appeal to the district court, a petition was filed by the plaintiff, containing the same allegations. In the district court said paragraph 5 was amended so that the clause beginning with the word “agreed” and ending with the word “agent,” was made to read as follows: “Agreed to and did then and there accept in full satisfaction of their said claim, and to turn over and deliver to defendant the commission certificates held by plaintiffs as evidence of their commission on said sale and the defendant by their said agent.” By its answer, the defendant admitted the agency of the plaintiffs and the sale of the machinery by them as said agents, but alleged that the services of the plaintiffs in and about said sale were rendered by them under and by virtue of a written contract which contained, among other things, the following conditions: That no compensation should be allowed or paid on any article taken back, whatever the cause, on any machinery not settled for, nor on any sale to irresponsible parties; that payment of commission should be made only when the notes taken for machinery sold should be paid in full; that no verbal agreement bearing on transactions under such contract should be binding until approved by the defendant, at its home office; that in case of sales made by agents where the purchase price was to be evidenced by notes, the company should issue its agents commission vouchers, in the form of notes, „ signed by the company, conforming in all respects to the conditions and limitations specified in the contract of agency, payable only as therein specified. It was further alleged by the answer
It is first urged that the court erred in permitting the amendment to the petition, for the reason that by said amendment, a different cause of action was pleaded than that tried in justice court. We can not concur in that view. Technical accuracy in pleading in justice court is not required. From the bill of particulars, it is clear that a recovery was sought, in justice court, for the amount agreed upon between the parties in settlement of their
It is next urged that the petition, as amended, fails to state a cause of action. The principal ground of this contention is that it fails to state that the plaintiffs delivered or tendered the commission certificates which were issued to them in accordance with the agreement set forth in the defendant’s answer. One sufficient answer to this is that it does not appear on the face of the petition that they held any commission certificates. When the petition is assailed on the ground that it fails to state a cause of action, Ave are not permitted to scan the answer for the purpose of discovering Avhether some of the defenses therein set forth should not have been anticipated by the petition. It sufficiently appears from the petition that the plaintiffs claimed certain commission due them from the defendant; that, in order to secure a settlement of such claim, they offered to accept a lesser amount than that actually owing them; that their offer was accepted by the defendant, and an agreement entered into betAveen the parties whereby the defendant undertook and agreed, to and Avith the plaintiffs, to pay said lesser sum in full satisfaction of the plaintiffs’ claim; that the amount thus agreed upon had not been paid. We think the petition states a cause of action.
It is further insisted by the defendant that the court erred in not directing a verdict in its behalf. In support of this proposition, it is first urged that the evidence is insufficient to establish any authority, on the part of the defendant’s agent, to make the settlement in question. It would serve no useful purpose, and Avould unduly extend this opinion, to set out the evidence tending to shoAV such authority. We have gone ‘over the evidence Avith some care, and are satisfied it is amply sufficient to justify a finding that such agent had ostensible authority, at least,
Complaint is made by the defendant of an instruction given by the court on its own motion, wherein the jury were instructed that, to entitle the plaintiff to a verdict, they must find the contract of settlement Avas made, and that it was based on a valid consideration; that is, “that at the time of the alleged settlement, the defendant company was owing plaintiffs as alleged' in plaintiff’s petition.” The objection urged against this instruction is that it led the jury from the real issue of an actual and completed new contract made in consideration of a Avaiver and
The defendant also complains because the court submitted to the jury the question of the apparent authority of the agent to make the settlement and in that behalf urges that the written contract, in evidence, provides that no verbal contract shall be binding on the defendant, and that written contracts must first be approved at the home office, or branch office, of the defendant, before taking effect. This was no more than a notice to the plaintiffs of the limitations on the authority of the defendant’s agents at the time the contract was made. As before stated, the evidence shows that the agent had at least ostensible authority to make the settlement. In other words, the defendant held him out to the world as having such authority. Its actions in that behalf were equivalent to notice that the former- limitations on his authority had been removed. We think the question of ostensible authority was properly submitted to the jury.
The party to whom the machinery was sold was called as a witness by the plaintiffs, and was permitted to testify to a conversation had between such witness and the agent of the defendant long prior to the settlement in question. The plaintiffs propounded the following question to the witness: “Did Mr. Adams [that is, the agent], at that time make any statement to you in regard to the commission certificates in controversy?” A. “He did.” Q. “What were those statements?” This question was objected to as incompetent, irrelevant and immaterial, and on the further ground that it did not pertain to the alleged
It is next urged that the verdict is not sustained by sufficient evidence. The cause was submitted to the jury on conflicting evidence, from which reasonable minds might reach different conclusions. Under such circumstances, the verdict of the jury is conclusive.
It is therefore recommended that the judgment of the district court be affirmed.
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is
Affirmed.