81 Neb. 460 | Neb. | 1908
The opinion of Mr. Commissioner Oldham on a former appeal of this case will he found in Hefner v. Robert, 76 Neb. 192. On the case being remanded to the district court, Robert, the plaintiff, obtained leave to file an amended petition, which alleges the purchase of the horse, Girton Royal Tom, and the making of the written contract between the plaintiff and defendant containing the terms and the conditions of the sale. While this written contract is set out in full in the opinion of Mr. Commissioner Oldham, we insert it here for convenience of reference. It is as follows: “Omaha, Neb., March 24, 1902. This contract entered into by and between Ed Robert, of Guthrie Center, Iowa, and O. O. Hefner, of Omaha, witnessetli as follows: That O. O. Hefner has this day sold the imported shire horse, named ‘Girton Royal Tom/ for the sum of $1,300, upon the following terms and divisions, payable $800 in one coach horse, $100 cash in hand, and $400 due in one year, with 6 per cent, interest from date. This contract notes that the horse, Girton Royal Tom, is blemished in hind leg. He further agrees that in case that the horse does not recover from tiiis affliction he shall be turned back to O. O. Hefner for $600 cash in hand and Ed Robert’s note of $400 of even date herewith, due in one year at 6 per cent. It is further provided that if horse recovers from blemished condition of hind leg, then Ed Robert shall pay to O. O. Hefner his promissory note of $400. O. O. Hefner, Ed Robert.” The amended petition, after setting out a copy of the above contract, proceeds to allege that at the date of the contract he paid the de
We understand, from brief of appellee and from the oral argument on the submission of the case, that the district court, in sustaining the demurrer, proceeded upon the theory that a demurrer searches the whole record, and that the record on the first trial was a part of the record which might be examined to determine the sufficiency of the amended petition; that the petition upon which the first trial was had asked a rescission of the contract, and the plaintiff, having elected to sue for a rescission of the contract, is barred of an action for damages. The rule that a demurrer searches the entire record, applies only when a demurrer is filed to a pleading subsequent to the petition or declaration. Both by the common law and by our statute a petition is demurrable only when it appears on its face that it does not state a cause of action. In Null v. Jones, 5 Neb. 500, the first paragraph of the syllabus is in the following language: “In determining whether a demurrer should be sustained to an amended
The petition on its face states a cause of action for damages, and the demurrer was not well taken; but, if it should be held that the demurrer required the court to examine the pleadings upon which the first trial was had, still we think it should have been overruled. Because of the claim made that the first action was one for rescission of contract, and because the opinion of Mr. Commissioner Oldham accepts it in that light, we have looked into the record of the former trial to ascertain if appellee’s claim is well founded. The district court in its charge to the jury on the first trial, and the attorneys on their presentation of the case to this court, assumed that the action was one of rescission, and the commissioner in his opinion, as was perfectly justifiable under such circumstances, decided the case upon the theory upon which it was presented. The fact is, however, that the petition upon which the case Avas first tried is one for damages, and that, as we view it, was the only action which the plaintiff could bring under the contract. When the horse was sold, both parties knew of the blemish, and, Avhile the plaintiff was willing to risk $300 upon the
On any theory that may be advanced, the district court erred in sustaining the demurrer and dismissing plaintiff’s petition, and we recommend a reversal of the judgment and remanding the cause for further proceedings not inconsistent with this opinion.
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is reversed and the cause remanded for further proceedings not inconsistent with this opinion.
Reversed.