61 Neb. 406 | Neb. | 1901
In 1894 one G. T. Davis acted as agent at Nebraska City, in this state, for the McCormick Harvesting Machine Company in' the sale of its goods. Authority to so act was given by virtue of a written contract, which empowered him to sell for it, on commission, certain harvesting machines, twine binders, trucks, bundle carriers, flax dumps and repairs. The defendant in the lower court, M. B. Davis, signed the following contract of. guaranty on the back of the above mentioned contract of agency:
“In consideration of one dollar paid to me by the McCormick Harvesting Machine Company, the receipt of which is hereby acknowledged and in a further consideration of constituting the within named agency by the McCormick Harvesting Machine Company, I hereby guarantee to them the fulfillment of the within contract and the payment of all obligations arising under the same, on the part of the said G. T. Davis.
“Dated this 6th day of Feb., 1894. M. B. Davis.
“Attested, O. F. Spencer.”
By the terms of the contract said G-. T. Davis agreed to collect from the purchasers of machines and goods all freight thereon from Chicago, or to assume loss on same. On the trial, and under the issues, there was a controversy over this freight, particularly concerning that upon harvesting machines sold by Davis. The plaintiff contended that Davis was to collect the freight over and above the price for which the machines were actually sold, and Davis claimed that the freight was included in the purchase price thereof, and made up a part of each note taken, where time sales were made. Under these circumstances it was the duty of the trial court to construe the contract between the parties, and we think it was error for the court to refuse the following instruction tendered by plaintiff: “You are instructed that, by the contract between plaintiff and said Davis, the said Davis was obliged to collect from the. purchasers of machines the Chicago freight paid by him thereon, or to assume the loss on such freight as paid by him,, and he was obliged to collect such freight over and above the selling price fixed by the plaintiff.” We have no doubt this instruction properly construed the contract, relative to the question of freight, and should have been given, and failure to give it was error, as the court did not construe the contract in any instruction. This we think is true although there was controversy as to whether in one or two instances the company, owing to its having sent ma
The court deems it unnecessary to pass upon all the questions of law raised in the brief of plaintiff. One relative to admission of certain evidence may be noticed. G. T. Davis claimed that he Avas entitled to a considerable credit on the account between him and plaintiff by virtue of his haring, as he claims, kept and boarded a team for plaintiff. After having testified to the fact that having kept and boarded the same, and the length of time, he Avas asked, “What has it been worth by the month?” To this objection was made, as incompetent, immaterial, irrelevant and that no foundation had been laid, Avhich objection being overruled, exception was taken. Witness then, without having expressly shown that he knew the value of such keep, testified that it was Avorth a certain amount. It is claimed that the admission of this evidence was erroneous. The witness had testified that he had rendered these services, and for that reason his evidence was competent without his having first disclosed other qualifications to testify on that subject. The owner of land may testify to its value; and he who has rendered services is also competent to testify as to the value of such service, without other qualifications being shown. Chicago, B. & Q. R. Co. v. Shafer, 49 Nebr., 25; Robertson v. Knapp, 35 N. Y., 91; Edwards v. Fargo & S. R. Co., 33 N. W. Rep. [Dak.], 100, 105; Tucker v. Massachusetts C. R. Co., 118 Mass., 546; Mercer v. Vose, 67 N. Y., 56.
Reversed and remanded.