Palmer v. Schaber

2 N.W.2d 923 | Neb. | 1942

Rose, J.

This is an action to recover the remainder due on the purchase price of a horse. Plaintiff alleged that he sold the horse to defendant November 23, 1938, for $50, delivered it the next day, received $10, and that defendant refused upon demand to pay the remainder of the purchase price —$40.

In addition to a general denial of unadmitted allegations in the petition, defendant pleaded in defense:

“He admits that he attempted to purchase a horse from plaintiff but alleges the fact to be that said purchase was made in the nighttime and he had no opportunity to see the horse; he relied absolutely upon the warranty and statements of the plaintiff to the effect that said horse was sound in every way, and thereupon defendant agreed to pay $50, and paid plaintiff the sum of $10 thereon, and later took the horse home. At the first opportunity of examining said horse in the daytime he discovered that said horse was not sound; but unsound, crippled and lame, and had dizzy spells, was unable to walk or trot straight, besides being a stallion, which makes said horse of no value to defendant herein.”

Upon a trial of the case in the county court of Wayne county there was a judgment in favor of plaintiff for $40. Defendant appealed to the district court where the judgment was the same as in the county court. Defendant appealed to the supreme court.

In the district court the parties waived a jury and the trial resulted in favor of plaintiff and against defendant for $40. It is a settled rule that findings of the district court in an action at law, where a jury is waived, have the effect of a verdict.

On appeal it is argued on behalf of defendant that the findings and judgment below are clearly wrong under the evidence and should be reversed. The evidence as a whole is found sufficient to support findings that plaintiff did not make the warranties and statements upon which defendant relies for a defense and that defendant examined the horse before he made his purchase. There is no error in the proceedings.

Affirmed.