59 Neb. 203 | Neb. | 1899
In an exchange of hotel property situate in Sutton, and owned by the plaintiffs in error, for another hotel property owned by defendant in error in the same' place, in the deed by which the latter conveyed to the former there appeared the following: “With all buildings thereon, the same not to be used for hotel purposes for two years from this date.” The deed was of date June 11, 1889. The defendant in error instituted this action in the district court of Olay county on March 24, 1891, and alleged for cause a violation of the restriction as to use of the property of inception September 17, 1889, and a continuation thereof to the time of the commencement of the suit. The parties sued filed-an answer, to which there was a reply. The cause was submitted on the pleadings, and the court rendered a judgment for the defendants in the action, which in an error proceeding to this court was reversed, and the cause remanded. See Mollyneaux v. Wittenberg, 39 Nebr., 547. After the case was returned to the district court, an amendment of the answer was made, and there was a trial of the issues, which resulted in a judgment for the plaintiff, and the case was again presented to this court, and the second judgment was reversed, and the case again remanded. See Wittenberg v. Mollyneaux, 55 Nebr., 429. It has again been tried, and the results were a verdict returned and judgment rendered thereon in favor of the plaintiff in the sum of $-. The case is again here for review. For full statement of the matters pleaded and in litigation we refer to the former opinions. They need not and will not be restated herein. By the first opinion it was decided that the restrictive matter of the deed was not invalid for being in restraint of trade, and was not within the prohibition of our statutory law in regard to trusts, and further, there was sufficient pleaded to entitle the plaintiff to at least nominal damages. By the second opinion there were certain points determined which we need not partic
Tlie jury in the case at bar returned a verdict in which there appeared a statement-of the amount of damages, $1,500; also interest on said sum-from a date which in an instruction had been stated it was proper to allow interest on the amount determined as .damages. The amount of interest set forth in the verdict was $759.15. It is contended for plaintiffs in error that it was improper to instruct the jury to allow the interest, and the allowance was erroneous. This contention must be sustained. The right to any sum was a matter -for determination by suit. The amount, if any, was not ascertainable from the contract or by computation, and must be fixed by litigation. It was unliquidated and interest was not allowable. See Shipman v. State, 44 Wis., 458; Vietti v. Nesbitt, 41 Pac. Rep. [Nev.], 151; Swinnerton v. Argonaut Land & Development Co., 44 Pac. Rep. [Cal.], 719;
It is argued that the instruction numbered 1 is not sufficiently full and definite in its statements. This was the portion of the charge to the jury in which the issues were set forth. The instruction is probably open to the objection urged against it, but the counsel who complain did not prepare and request more explicit directions. See Barr v. Omaha, 42 Nebr., 341, 60 N. W. Rep., 591; Carter White Lead Co. v. Kinlin, 47 Nebr., 409, 66 N. W. Rep., 536.
Instruction numbered 5 is as follows: “If you find for plaintiff, you may include in your verdict interest at seven per cent on whatever of .damages the evidence shows you was due plaintiff at the close of the two years, such interest, if any, to be computed from January 11, 1892.” It is objected that this contained a misdirection, in that it stated that the damages would be the amount shown by the evidence for the entire two years; that this suit was commenced some seventy-nine days prior to the close of the two years designated in the deed, and the jury'should not have been told that the damages would in this action be for the whole of the two years, as no recovery could be had herein beyond the time of the commencement of the action. The instruction may be said to be defective and erroneous as claimed. It is true that no recovery of damages could be allowed in this suit beyond or subsequent to its institution. See Terry v. Beatrice Starch Co., 43 Nebr., 866; Carstens v. McDonald, 38 Nebr., 858. The instruction is misleading in its terms and substance and of a nature to prejudice the rights of the complaining party.
Reversed and remanded.