25 Neb. 575 | Neb. | 1889
The plaintiffs brought their action against the defendant, alleging in their petition the sale and delivery to him of' five barrels of Gibson rye whiskey, of the value of $429.64, for which payment had not been made, and demanding judgment therefor.
Defendant answered, denying each and every allegation of the petition. For a second defense he alleged that thewhiskies sued for were spirituous liquors, and that at that time the plaintiffs had not taken out license for the sale of malt, spirituous, or vinous liquors, as required by the-laws of the state of Nebraska; that therefore the alleged sale, if such was made, was unlawful and contrary to the-statutes, etc.
Plaintiffs replied that said liquors were not sold in the-state of Nebraska but in the state of Ohio, etc.
1. The court erred in excluding the testimony of George-Smith, relative to the payment by Edward Maurer of' freight bill by mistake. ■
2. The court erred in excluding the testimony of Edward Maurer in reply to the question, “ What did you tell the messenger?”
3. The court erred in excluding the testimony of Edward Maurer in reply to the question, “ Was there authority in Blake to order the goods for you?” ■
4. The court erred in allowing the question to witness-Schroeder, in direct examination, “You say that Mr. Blake-had said he had sold four or five barrels of whiskey, and kept the proceeds for his own share?”
5. The court erred in giving instruction No. 1, asked by defendants in error.
6. The court erred in giving instruction No. 4, on its-own motion.
7. The court erred in giving instruction No. 5, on its-own motion.
8. The court erred in giving instruction No. 6, on its-own motion.
9. The verdict is against the weight of evidence.
10. The court erred in overruling the motion for a new trial.
The first contention of plaintiff in error in the brief of the counsel is, that there was no proof, or not sufficient proof, of partnership relations existing between Maurer and Blake to charge the former with responsibility for the goods ordered by Blake. Having carefully read the'testimony of Blake and Maurer, I come to the conclusion that there is sufficient evidence of partnership to sustain the'verdict for the plaintiffs. There is a sharp conflict of the-evidence between the testimony of Blake and that of
The second point argued is that arising upon the exclusion of the testimony of Maurer as to what he told the bank messenger, when the draft for the whiskey was presented to him.
Had the suit been brought on the draft, and had it been claimed by the plaintiffs that anything occurred between Maurer and the messenger presenting it that tended to make him liable upon the draft, then, doubtless, the testimony of Maurer would have been admissible to explain it, but the suit being brought upon the alleged original liability of Maurer arising upon the sale of the goods, I do not think that anything which could have been said by Maurer to the bank messenger would have tended to disprove or restrict such liability. In this connection counsel call attention to the 5th instruction given by the court to the jury on its own motion. If this instruction told the jury to take into consideration what passed, or did not pass, between Maurér and the bank messenger at the time of the presentation of the draft, as seems to be the understanding of counsel, then I would agree with them that the ruling and the instruction cannot both be approved; but the instruction tells the jury generally that, in determining as to the liability of Maurer, they might “ consider the direct evidence as to whether there was or was not such an agreement
As to the third assignment of error, the question objected to and excluded was objectionable. Mr. Maurer had testified as to all of the agreement and transactions between himself and Blake, as he professed to understand them. He was then asked the following question: “Was there any authority in Mr. Blake to order goods for you? ” This question simply called for an opinion or construction of the facts to which he had testified, as to whether they conferred upon Blake the authority to bind him by the order of the goods. The facts were before the jury, and it was for them to say whether upon them Maurer was bound by the order.
4. The first instruction given to the jury by the court at the request of the plaintiffs is as follows: “ If the jury believe from the evidence that Blake and Maurer entered into a partnership, he (Blake) being a silent partner, and that Blake ordered the goods in question, and that plaintiffs shipped the same to defendant Maurer, and they were received by him in Omaha, then he is liable for the same; and so far as the plaintiffs are concerned it is immaterial what disposition either Blake or Maurer made of the goods after said goods were received in Omaha.” It is argued by counsel that this instruction is misleading, and inferring that Maurer was responsible for any goods ordered by
Again, it is objected that that part of the instruction, that it was immaterial what disposition either Blake or Maurer made of the goods after they were received, is erroneous, as tending to keep from the jury the consideration of the question whether or not the whiskey was for Blake’s personal use, and so ordered by him, as alleged by Maurer, and also whether the acts of the parties in regard to this whiskey showed partnership relations, etc. It will be observed that this instruction is predicated and made to depend for its applicability upon the belief by the jury, from the evidence, that Blake and Maurer had entered into a partnership, etc. If, as suggested by counsel, it tended to keep from the jury the consideration of the question whether the acts of the parties in regard to this whiskey showed partnership relations, then, to that extent, it 'was prejudicial to the plaintiffs, and not to the defendant, for it was incumbent upon them to prove partnership in order to bind Maurer. I cannot see how this instruction tended to keep from the jury the consideration whether or not the whiskey was for Blake’s own personal use, or how that fact, if true, would defeat the plaintiffs, unless knowledge of it was brought home to them before the shipping of the goods.
As to the point whether the action can be maintained against Maurer alone, without a thorough examination of the law, which the press of business now forbids, I think that had advantage been taken, in the answer, of the omission of Blake as a party defendant, such omission
It is not deemed necessary in this connection to discuss the law of partnership.
The judgment of the district court is affirmed.
Judgment affirmed.