38 Neb. 680 | Neb. | 1894
Patterson, Murphy & Co., by that name, brought this action in the district court of Cass county, alleging that the plaintiffs were a partnership formed for the purpose of doing business in this state; that the defendant Schneider leased a tract of land of four acres in Cass county for the term of five years to one Jerry L. Earthing and received the full rent therefor; that the lease was made with the privilege of taking sand from the land; that Earthing assigned the lease to plaintiffs, and then, at some length, the petition alleges that Schneider leased two and one-quarter acres of said land to another company and put the lessee in possession, and prays damages for the exclusion of plaintiffs from that portion of the land. Two answers appear in the record. It may be assumed that the later one filed was intended as an amended answer and will be treated as such. By that answer, Schneider avers that the “ full amount of ground claimed by plaintiffs in this action was by them taken, occupied, and used, and that no part of the ground sold to the Omaha Gravel Company was included in the purchase so made by plaintiffs or their assignor herein. . Defendant, therefore, denies each and every material allegation in said cause alleged and avers that plaintiffs have nothing to complain of. The defendant denies that there is in existence any such person or firm as plaintiff alleged herein.” There was a verdict and judgment for plaintiffs.
The first assignment of error to be noticed relates to the admission of parol testimony to prove the existence of the partnership. This evidence was objected to as incompetent, for the reason that sections 27, 28, and 29 of chapter 65, .Compiled Statutes, provide for filing in the office of the county clerk a certificate showing the names of individuals doing business under a firm name and make that record evidence. It is claimed that such certificate is the only
The statute referred to provides in section 27 that any association of persons doing business in any county under a firm, partnership, or corporate name, and not incorporated under the laws of this state, shall have recorded in the office of the county clerk of the county where the place of business is located, a certificate signed by each member of said association showing, first, the name of the association ; second, the general nature of the business and principal place of doing business; and third, the full name and residence of each individual member of the association. Section 28 provides for the recording of such certificates and makes the record or a certified transcript prima facie evidence of the facts therein set forth. Section 29 provides a penalty against any person who shall, for the space of twenty days, fail, neglect, .or refuse to comply with the provisions of the act. This statute has several times been called to the attention of the court. In Shriver v. McCloud, 20 Neb., 474, the same objection seems to have been urged as presented in this case, but that was an action between the persons alleged to be partners, and the court disposes of the question by saying that the parties were in pari delicto, and, whatever mighty be the true construction of-the act, its provisions could not be invoked by one partner against the other, both being equally responsible for the failure to make and file such certificate.. A doubt, however, is expressed as to whether the statute applies in any case where the partnership name is that of one or all of the partners. In Milligan v. Butcher, 23
Another assignment of error is the admission in evidence of the assignment of the lease from Farthing to the plaintiffs, upon the ground that it was not witnessed. A refer
The principal contention arises out of the admission of evidence to identify the land demised. The description in the lease is as follows: “Four acres out of lot four in S. E. ¿ of the N. W. of sec. 5, T. 12, R. 11, in Cass county, Neb., lying on the north side of the railroad track.” Parol evidence was admitted over defendant’s objections, which disclosed that the lessor owned more than four acres lying north of a certain railroad track and which tended to show on the part of the plaintiffs that the lessor and original lessee had gone upon the land, plowed a furrow along a portion at least of what was intended to be one of the lines of the tract demised, “ stepped off” the rest of the tract and agreed as to the boundaries of the tract. The question is, was such evidence admissible ? The plaintiff in error contends that the description in the lease is uncertain upon its face and cannot be helped out by parol evidence. Parol evidence doubtless would have been admissible to show that the lessor owned only four acres in lot four, or to show that only four acres in lot four lay north of the railroad track. (Adams v. Thompson, 28 Neb., 53; Ballou v. Sherwood, 32 Neb., 666.) So, too, had the evidence shown that the lessor owned two distinct tracts in lot four north of the track, each of four acres, so that the description would apply to each, parol evidence would have been admissible to show the intention of the parties. “If a man levies a fine of the Manor of Soure or of the Manor of Dirtleby, and in truth there is the Manor of North Soure and South Soure or Great Dirtleby and Little Dirtleby, in this case issue may be taken dehors which manor the conusor intended to pass.” (Altham’s Case, 8 Coke’s Rep. [Eng.],
The plaintiff in error also seeks to avoid responsibility
A question is raised as to the admission of certain evidence to prove damages. It will be remembered that the-lease expressly granted the privilege of removing sand from the land. The petition alleges that plaintiffs carried on the business of shipping sand to adjoining cities and selling the same, and prepared the ground for such business, and that by defendant’s acts the profits of such business were greatly diminished, all to defendant’s knowledge. The evidence objected to related to the cost of mining sand, the value of sand on the track, the profits per car, and the-number of car loads per acre. Upon this subject the court instructed the jury that the measure of damages would be the value of occupying the land and taking away the sand for the period of five years. No exception was taken to this instruction, and under the familiar rule in Hadley v. Baxendale, 9 Exch. [Eng.], 341, the instruction was correct. The lease being made for the purpose of removing sand, the-damages arising by reason of plaintiffs not being permitted to remove the sand must have been in the contemplation of the parties, and the evideuee objected to was all material for-the purpose of enabling the jury to determine the value of the occupancy of the land for that purpose. (Sedgwick, Damages, secs. 987, 1022.)
There is in the record the usual assignment that the verdict is not sustained by the evidence. "We are not able ■to understand all the evidence very perfectly. At the commencement of the trial a plat was introduced that the witnesses constantly referred to, sometimes by words indicating.
Affirmed.