Spurck v. Dean

49 Neb. 66 | Neb. | 1896

Harrison, J.

The plaintiff instituted this action to recover of defendant an amount alleged to be due as compensation for work and labor performed by plaintiff for defendant during the times stated in the petition filed, wherein there also appeared an allegation that the work was done at a stipulated or agreed price per week. Issues were joined and tried and the result was a judgment for plaintiff, seeking a reversal of which defendant has prosecuted error proceedings to this court.

Of the alleged errors the one mainly urged and relied Apon in the argument as being fatal to the judgment rendered is that the verdict was not sustained by sufficient evidence. A determination of this question in this, as in any other case, necessitates an examination of the evidence as preserved and presented in a bill of exceptions. What purports to be such bill in the present case is attached to the record, but is not authenticated by the certificate of the clerk of the district court in which the cause Avas tried; hence it is not properly before us for examination and is not entitled to be considered. (Romberg v. Fokken, 47 Neb., 198; Childerson v. Childerson, 47 Neb., 162; Romberg v. Hediger, 47 Neb., 201.) We have, however, searched through it, and discover a conflict in the evidence in respect to the fact as to which it was contended it was unsatisfactory, but also conclude that there was sufficient to support the verdict returned by the jury, from which it follows that the verdict will not be disturbed. (Sycamore Co. v. Grundrad, 16 Neb., 529.)

During the progress of the trial of the cause evidence was admitted of what was the value of the services performed by the plaintiff at the time when the contract was made and during its performance. It is urged that inasmuch as the plaintiff claimed that the consideration to be paid for the labor had been agreed upon was a fixed sum, any evidence of its worth was incompetent and irrelevant and should not have been allowed. No objections vere interposed during the trial to any of this evidence which it is claimed should not have been admitted, but whatever the condition of the record in this respect, there was a conflict in the evidence in relation to the amount of the price agreed upon to be paid and received for the labor, and it was competent to show what the work was worth when the contract was made, and such evidence as was admitted was not erroneous. (Allison v. Horning, 22 O. St., 138; Swain v. Cheney, 41 N. H., 232; Fry v. Tilton, 11 Neb., 456.) The judgment of the district court is

Affirmed.