Sterling Lumber Co. v. Stinson

41 Neb. 368 | Neb. | 1894

Ryan, C.

Plaintiff, by its petition filed in the district court of Johnson county, alleged that between it and the defendant there was stated an account whereby it was agreed that there was due from defendant to plaintiff the sum of $151.05, which sum the defendant accordingly agreed to pay; that he had failed so to do; and there was a prayer for the amount named, with interest and costs. These averments were denied by the defendant,- who admitted in his answer'that there was due from defendant to plaintiff the sum of $75, for which sum he tendered judgment. Judgment was rendered in favor of plaintiff for but $75, conformably to the verdict of a jury on a trial of these issues, and from this judgment the plaintiff prosecutes error to this court. There was sufficient evidence to sustain the verdict rendered, for there was disputed evidence as to whether an account was stated or not. As an original question, it is probable the weight of the evidence preponderated in favor of the verdict as returned. Certainly there is no such lack of support as would justify interference by this court. The instructions of the court fairly presented to the jury the law which should be applied in determining whether or not there was an account stated. The verdict, therefore, cannot be disturbed either because of lack of evidence to sustain it, or on account of error of law in giving or refusing instructions applicable to the issues presented.

It is urged that there was error in admitting in evidence Exhibits A, B, and C. These were statements of account claimed by the defendant to have been made out by the agent of plaintiff, and were properly admissible upon that theory, to sustain the defense pleaded in the answer. As plaintiff’s cause of action was on an account stated, he could recover only by showing both the account and unqualified assent of defendant to its correctness. The court, therefore, very properly excluded from the jury’s consideration the showing made by the books of account of plaintiff, independently of the alleged account stated.

Errors are urged as to the admission of testimony, but as this matter was presented on the petition in error only as “errors of law occurring at the trial, duly excepted to,” they cannot be considered. The judgment of the district court is

Affirmed.