Stump v. Maddox

| Neb. | Jul 15, 1879

Cobb, J.

The first error assigned is as follows: “The court erred in overruling the motion of defendants below (plaintiffs in error) to strike out the 1st, 3d, and 4th counts of the petition.” Upon examination of the record, I find that it contains but one count or cause of action. True, for some reason not very apparent, the pleader seems to have divided and numbered the same into four paragraphs. But these paragraphs cannot be considered as separate counts (even if such a thing as a “count” exists under the code practice). Neither one of them purports to state a cause of action perfect in itself, and all are necessary to the full statement of the cause of action sought to be pleaded. It is probable that a motion to require this pleading to be made more definite and certain would have been sustained, but the motion made was properly overruled.

The second error assigned is, that the “ court erred in overruling the demurrer to the petition,” etc. By reference to the demurrer I find that it contains three grounds of demurrer. 1st. “Because there is more than one cause of action stated in said petition which are incongruous, conflicting, and contradictory.” 2d. “ That said petition does not state facts sufficient to. constitute a cause of action against the defendants, Shaffer & Stump.” 3d. “Because there is a misjoinder of parties defendant,” etc.

As above stated, the petition does not contain but one cause of action. The statement of the sale and delivery by the plaintiff below of goods and chattels t.o the said Shaffer & Stump, to the amount of $87.94, is only inducement to the after statement of the making and delivery of the check sued on, and to show the consideration for which the check was given, and cannot be considered as the statement of a separate cause of action. As to the second ground, I think that the petition does state facts sufficient to constitute a cause of action against all of the defendants; and as to the 3d, the above view disposes of that objection also.

As to the point that the court erred in admitting illegal testimony offered by the plaintiff below, and allowing the same to go to the jury over the objections of the plaintiff, as well as the other point, that “the court erred in excluding from the jury proper and legal evidence offered by defendants below to sustain their part of the issues in said cause,” it is perhaps sufficient to say that both of said points seem to have been substantially abandoned by the plaintiffs in error.

It'has been repeatedly held by this court that “to entitle a party to a review of the ruling of the court below on the admission or rejection of testimony, it is necessary that the alleged error should be specifically pointed out, not only in the petition in error, but also in the motion for a new trial in the court below.” Cropsey v. Wiggenhorn, 8 Neb., 108. Gibson v. Arnold, 5 Neb., 186" court="Neb." date_filed="1876-07-15" href="https://app.midpage.ai/document/gibson-v-arnold-6642122?utm_source=webapp" opinion_id="6642122">5 Neb., 186. Scofield v. Brown, 7 Neb., 221" court="Neb." date_filed="1878-04-15" href="https://app.midpage.ai/document/scofield-v-brown-6642477?utm_source=webapp" opinion_id="6642477">7 Neb., 221. Lowrie v. France, Id., 191. Tomer v. Dinsmore, 8 Neb., 38, and authorities there cited.

But one error of the above character is pointed out in the motion for a new trial, which is as follows: “ That the court in the trial of this cause erred in rejecting the evidence offered by the defendants, Shaffer 6 Stump, to prove that they were damaged by reason of the said plaintiff neglecting to give notice of the non-payment of the said cheek before the suspension of the Falls City Bank.”

The jury by their special verdict found that the defendants, Shaffer & Stump, had no money in the bank on which the check in favor of plaintiff (below) was drawn at the time said check was presented by the plaintiff. There was evidence to sustain this finding, and it is clear from the evidence that the cheek was presented for payment at the bank, almost immediately after it was delivered to defendant in error by plaintiffs in error. Under these circumstances plaintiffs in error were not entitled to notice of the non-payment of the check. But if they had had funds in the bank, in which case the defendant in error would have lost his remedy against them by failing to notify them of the non-payment of the check, even then the nominal and technical damages which they would be considered to have sustained by reason of their not having received notice of the non-payment of the check would only have gone to the extent of relieving them from liability on the cheek, and would' have been a question of law and not of fact. But it would have been sufficient to have said of this point that no foundation for such evidence was laid in the answer of the defendants be-, low. Such testimony was properly rejected.

I have examined the instructions given in charge to the jury at the request of the plaintiff below, as well as those requested by defendants below and refused, the giving and refusing of which respectively are complained of by the plaintiff in error, and find no error in the action of the court below in either of these respects.

The judgment of the district court must be affirmed.

Judgment affirmed.