84 Neb. 783 | Neb. | 1909
This action was brought by the plaintiff to recover damages for breach of warranty upon a stallion named Jupiter, which he procured from the defendant in exchange for a stallion named Stobal and $300 in money. The defendant admits the exchange of stallions and the receipt of the money, but denies the warranty. He also alleged that the plaintiff warranted the stallion Stobal, that there was a breach of this warranty, and prayed for damages for the breach. In reply the plaintiff admits the warranty of the stallion Stobal, and denies a breach. There was a verdict for the defendant on the plaintiff’s cause of action, and for the plaintiff on its counterclaim.
These instructions were based upon the issues as made by the pleadings. If the plaintiff had established the allegations of his petition to the satisfaction of the jury, he would have been entitled to recover the difference between the value of the horse Jupiter as he actually was and what he would have been worth had he been as warranted; but if, as he alleged, the defendant had taken back the horse and given the plaintiff $200 in money and horses of the value of $300 in exchange, the plaintiff’s recovery would be the difference in value less the amount which he had thus received. No instruction was requested or tendered by plaintiff asking a more definite statement. The plaintiff framed his petition so as to present these two questions to the jury, and while the instructions might have distinguished the issues more clearly, the plaintiff having failed to request more definite or specific instructions and having presented the issues in such manner, cannot now complain that they Avere imperfectly stated. Sioux City & P. R. Co. v. Finlayson, 16 Neb. 578; Brownell & Co. v. Fuller, 60 Neb. 558; Barney v. Pinkham, 37 Neb. 664.
The judgment of the district court therefore is
Affirmed. ■