41 Neb. 306 | Neb. | 1894
This is an action by Drehmer Bros., partners, to recover of Moses Roberts, plaintiff in error, compensation for certain services, which they allege were performed by them for him. The material allegations of the petition- filed in the district court are as follows:
“The plaintiffs, for their cause of action, allege that on
To. drilling and putting in pump, 319 feet, at
$1.25................................................ $398 75
To 300 feet of casing, at 10 cents per foot........ 30 00-
To setting up well drill............................... 25 00
Total............................................. $463 75
Oct. 28, 1890, paid by cash...................:....... 175 00
Balance due....................,............... $288 75
“That on the 28th day of October, 1890, the defendant paid to these plaintiffs the sum of $175, leaving a balance still due and unpaid from the defendant to these plaintiffs the sum of $288.75, for which, with costs of suit, plaintiffs demand judgment.”
The answer contained a denial of each and every allegation of the petition not expressly admitted, and the further statement of matters of defense as follows:
“This defendant admits that on or about the 10th day of June, 1890, he entered into the contract with plaintiffs, as in the first paragraph of said petition described and alleged, but this defendant avers that said plaintiffs failed to fulfill the terms and the requirements of said contract, and utterly failed to procure, in the drilling and construction of the well mentioned in said petition, a plentiful flow and supply of water, according to the terms of said contract, and plaintiffs wholly failed and neglected to complete their contractaforesaid, according to the terms thereof; and this defendant further avers that, according to said contract, the defendant was to pay plaintiffs the sum of $1 per foot for drilling said well, and not $1.25, as in said petition alleged ; that by reason of the failure of said plaintiffs to contract and make said well according to said contract and procure, according to the terms thereof, for the use of defendant, a plentiful supply of water for one hundred head of cattle, two hundred head of hogs, twenty head of horses, and sufficient for household use, which, according to said contract, plaintiffs were bound to do, the defendant has been greatly damaged in the sum of $500.
The prayer of the answer was that the plaintiffs should not have and recover anything, and for judgment in favor of defendant Roberts in the sum of $500 damages. To this answer plaintiff filed, in reply, a general denial. A trial of the issues, before the court and a jury, resulted in a verdict in favor of Drehmer Bros., plaintiffs below, in the sum of $-, for which sum, after motion for a new trial on behalf of defendant Roberts was submitted and overruled, judgment was rendered for the plaintiffs, and to reverse which the case is brought here by plaintiff in error on his petition.
The first alleged error to which our attention is challenged in the brief filed on behalf of plaintiff in error is that the court erred in instructing the jury that the answer admitted the terms of the contract to be as alleged by -plaintiffs, and that the allegation of the petition in regard to the contract and its obligations were to be taken as true, The court did so instruct, and under the pleadings it is questionable whether it was proper or erroneous; but however this may have been, viewed in the light of the issues joined by the pleadings, and the evidence adduced at the trial, the jury, having found generally for the plaintiffs, could not, if they figured their compensation at the sum of $1 per foot, for which Roberts alleged in his answer the Drehmer Bros, agreed to sink the well, have made their verdict for a less sum, or indeed for a smaller sum than they did make it, $112.50, and the plaintiff in error was not prejudiced by the instruction of which complaint is made; and having-determined this agreeably to a settled rule of the court, the verdict and judgment will not, for this reason, be reversed.
Another assignment of error is that the court erred in
Instruction numbered 5, of the instructions given by the court on its own motion, was as follows: “But if, on the other hand, you find from a preponderance of the evidence that the $175 paid by defendant to plaintiffs was made and received as a part payment of the contract price, and such settlement was only' a conditional agreement, and they were to be paid the balance of the contract price, on the performance of the condition, * * * then plaintiffs would be entitled to recover the balance of the contract price on the performance of the condition on the part of plaintiffs, or their offer to perform, and prohibited by the defendant, if you should so find.” This instruction, it is claimed by counsel for plaintiff in error, was erroneous, in that it stated an incorrect rule for the measure of damages, wherein by it the jury was informed that “ then plaintiffs would be entitled to recover the balance of the contract price on the performance of the condition on the part,of plaintiffs, or their offer to perform, and prohibited by the defendant, if you should so find.” In considering the objection to this instruction it must be borne in mind that the petition in this case set forth a contract, alleged the full performance of it, acknowledged a part payment of it, and prayed for a recovery of the balance of the consideration in full; that the answer admitted the making of the contract, probably alleged a lesser consideration than the petition, pleaded affirmatively a breach of the contract on the part of the
Reversed and remanded.