83 Neb. 1 | Neb. | 1908
This is an action upon a promissory note for $200, bearing date March 10, 1904, with interest at 6 per cent, per annum from its date. The suit was instituted in the district court for Lancaster county, as the accumulation of interest, if computed, would render the action beyond the jurisdiction of a justice of the peace.
The defendant answered, admitting the execution of the note, but alleging as defenses: First. That the note was given as a part of $550 agreed to be paid as the difference between the price of two traction engines exchanged by the parties, and that at the time of the exchange plaintiff represented that the engine traded to Mm Avas sound and in good working order in every particular, fit and suitable for the-purpose for which he desired to use it; that the representations were untrue and false, known to be so when made, but unknown to defend-t; and that defendant relied upon and believed the and would not lucve made the exchange but for the Asentations: Second. That at the time of the ex-•e and the execution of the notes plaintiff warranted lgine to be in good working order and in good con
To this answer plaintiff replied, first, by general denial; second, by setting up the contract entered into at the tiipe of the exchange; third, that by reason of the terms of said contract defendant was estopped to avail himself of the matter alleged in the second defense set up in the answer.
A jury trial was had, which resulted in a verdict being returned finding for the plaintiff on its cause of action for $235.75, and in favor of defendant on his cause of action in the sum of $35.75, and assessing the amount of plaintiff’s recovery at $200, an amount equal to the face of the note without the addition of interest. Defendant filed a motion for a new trial. Plaintiff filed a motion, moving the court “to enter judgment herein for the plaintiff for the sum of $235.75, oh set aside the verdict of the jury in so far as the finding of $35.75 in favor of defendant is concerned, and grant pi?, intiff a new trial upon the cross-action óf defendant,” assigning a number of grounds
In the instructions given to the jury, the court directed them to find that there was due plaintiff on its cause of action the sum of $235.85, and then determine the amount of damages due defendant, if anything, and find for plaintiff or defendant according as the balance might be. This the jury did not do, but found the amount due plaintiff to be $235.75, as above stated. If the true amount due upon the note was in fact $235.85, which we do not determine, the attention of the court should .have been called to the error at the time of the return of the verdict, in order that the question might be referred back to the jury for the correct computation. A failure to do this must be considered as a waiver of the error, if one had been made. As the motion was not made until after judgment, and in view of the very slight error, if any was made, we must hold that it came too late, and that there was no error in the action of the court.
Defendant then filed a motion to retax plaintiff’s costs, and require plaintiff to pay its own costs, amounting to $82.47, on the ground and for the reason that plaintiff did not recover more than $200. This motion was sustained, and the costs named were taxed to plaintiff. To this ruling no exception was taken, and under the well-recognized and established rules of practice we must treat the action of the district court as final. This leaves the case to be disposed of upon the appeal of defendant.
It is contended that the court erred in giving instruction numbered 6, given upon the court’s own motion. The instruction is too long to be here copied. Defendant testified that, in order to induce him to sign the written order
Objections are made to other instructions, given by the court, but we are unable to see that they are meritorious. They are governed by the pleadings and evidence, and fairly submitted the case to the jury. We have read the pleadings, evidence and instructions, and must be content with saying in this general way that we find no error in the proceedings. If there has been a miscarriage of justice, the fault must rest with the jury in not properly considering all- the evidence and giving it the weight to which it may have been entitled. They being the sole judges in these particulars, we cannot molest their finding.
It follows that the judgment of the district court should be and is
Affirmed.