On or about April 20, 1912, the plaintiff was the owner of about 9,000 bushels of corn in the crib upon his farm in Nebraska. The parties are both residents of
In order to consider the other errors argued by the defendant, particular attention must be directed to his affirmative defense as set up in his answer. It was not a model of pleading. It appears to have been prepared in haste. Attempted conformity to it by the court was responsible for the alleged errors which are now assigned by the defendant against the instructions to the jury. Such affirmative defense was as follows:
This defendant alleges the fact to be that on or about the 20th day of April, 1912, he entered into an oral contract with the plaintiff, by the terms of which contract the plaintiff sold to the defendant his com to be delivered f. o. b. cars at Winnebago, Neb., for 72 cents per bushel. That it was expressly agreed by and between the plaintiff and defendant that the corn should be hard, sound, and dry corn, but the grade of said com was not agreed upon. That the defendant was not present when said corn was delivered at Winnebago, Neb., but gave the party in charge of said elevator shipping directions regarding the same. That the defendant, prior to the purchase and delivery of said corn, had never examined or inspected it, and would not have purchased said corn, and would not have received the same, had he known its true condition. That the corn delivered by the plaintiff to the defendant was not sound, hard, and dry corn, but, on the contrary, the corn delivered by this plaintiff to this defendant was unsound, was not hard, but was so damp and wet that the same heated in the ears, and was not fit for shipment, and did not*306 comply with the kind and quality of corn which the plaintiff had sold to defendant. That the fair and reasonable market value of the com so delivered by plaintiff at the time of said delivery at Winnebago, Neb., was 50 cents per bushel, or a total sum of four thousand four hundred forty-two and 14/100 ($4,442.14) dollars, the total number of bushels of the corn so delivered, in the condition of which the same was, being 8,884.28 bushels. That of said sum, the defendant had paid to the plaintiff the sum of four thousand five ($4,005.00) dollars, and, prior to the commencement of this suit, tendered to the plaintiff the sum of four hundred seventy and 49/100 ($470.49) dollars, in full payment of the balance due on said purchase, which said tender.the plaintiff refuses to accept, and the defendant herewith offers to pay to said defendant said sum of $470.49 in full settlement and payment thereof. Wherefore the defendant asks that the petition of plaintiff be dismissed and for his costs herein.
Apart from the question of the sufficiency of the evidence, the principal complaint of the defendant as appellant is that the trial court failed to instruct the jury as to defendant’s
The instructions given, however, did conform to the defendant’s pleading which is above set forth, and to certain requested instructions presented by the defendant to the court.
(6) You are instructed that, if one person sells and agrees to deliver to another good, sound, dry corn, but delivers corn of another quality, which is not good, sound, dry corn, then the purchaser may accept the corn offered, and be liable to the seller only for the value of the corn delivered.
The trial court followed the substance of these requested instructions. It did not instruct upon the subject of damages in express terms. It instructed the jury, however, that if the plaintiff agreed that the corn was to be “sound, hard, dry corn, or that in substance, then the plaintiff cannot recover anything in this action on account of such sale in excess of the $470.49, as tendered and conceded to be due him by the defendant.” It will be noted that this was in strict accord with defendant’s pleading, and with his requested instructions. The defendant is therefore in no position to complain of it.
While the instructions complained of are more favorable to the defendant than he was entitled to, when we consider the issues in the case and the evidence, the effect of these instructions upon the jury must have been prejudicial to the defendant.
In elaboration of this point, the defendant contends that certain evidence on behalf of the plaintiff showed the market value of the com in its actual condition to. be seventy-one cents per bushel. All the testimony on behalf of the defendant showed such value to be not in excess of the amount tendered by defendant. The instruction of the court at this point was in harmony with the evidence of the defendant and his witnesses and with the tender. The argument, however, is that, if the court had left the question of value open to the jury, a smaller verdict might have been rendered against the defendant than was rendered, even though it had been larger than the amount of the tender. Such an instruction, however, would not have eliminated the alleged error from the record. On the contrary, it would have given the defendant greater ground qf complaint, rather than less. It would have been more unfavorable to the defendant than the instruction that was given. Its only advantage to him, as he sees it now, would be the paradoxical one that it would now furnish him a ground of reversal on this appeal.
There is a further reason why the defendant could have suffered no prejudice at this point. The trial court instructed the jury that the burden was upon the plaintiff to prove that the defendant made the purchase of the corn upon his own inspection thereof and in reliance upon his own judgment,
To put the situation briefly, the defendant by his answer based his defense upon an erroneous theory of law. By requested instructions he prevailed upon the court to adopt such erroneous theory in the submission of the case. He is in no position to complain of such compliance by the court. As to the measure of damages, he neither pleaded any, nor offered any evidence in support of the correct measure for which he now contends. The instructions, as given, were more favorable to him than a statement of the correct .rale would have been. Manifestly he so regarded them at the time.
The judgment below must therefore be Affirmed.