83 Neb. 349 | Neb. | 1909
Plaintiff, now the appellee, brought this action in the district court to recover of the defendants the difference between the sum advanced to them on a car-load of wheat and what was realized therefor when it was sold on the market. It appears that the grain was sold to plaintiff by defendants Johnson and Cave, through their agent, defendant Hempel, as No. 2 hard wheat, and defendants, when the grain was loaded at the point of shipment, drew a sight draft on the plaintiff (which was duly paid) for a sum equal .to 90 per cent, of the purchase and market price for that grade of wheat. When the grain reached Minneapolis, which was its place of destination, it was found to be wet and badly heated, so that it was not up to any grade whatever, and could not be sold on that mar
The plaintiff therefore by its petition set forth all of the foregoing facts, and alleged that the wheat delivered to it by the defendant Johnson was wet and damaged and not up to grade when delivered and loaded into the car by him, and that he well knew its quality and condition. The petition further set forth the amount of wheat delivered by Johnson, the amount delivered by Cave, and prayed for an accounting and adjustment of the rights of the several defendants, a judgment for the sum of $322.60, with interest thereon from the 28th day of August, 1905, and “for such other and further relief as may be just and equitable.”
The defendants answered separately. The answer of defendant Johnson, who is the sole appellant, was: First, misjoinder of parties defendant; second, misjoinder of causes of action; third, no equity in the plaintiff’s bill; fourth, an admission that plaintiff is a corporation, and a denial of all of the other allegations of the petition. Defendant Johnson also filed a motion praying that the case be transferred from the equity docket to the law docket of the district court, which motion was overruled; and when the case came on for hearing he demanded a trial by jury, for the reason that the action was one at law, and not in equity. His request was denied, to which he duly excepted. A trial resulted in a finding and judgment for the plaintiff, and against the defendant Johnson, for the sum of $257.50, and he has brought the case here by appeal.
Defendant now assigns as error certain rulings of the district court, to wit, overruling his motion to require the
Defendant also contends that the evidence is insufficient to sustain the findings and judgment of the district court. His principal reason for this contention is his assumption that this action was based on a breach of warranty that the wheat in question should grade No. 2 on the Omaha market, and proof that it did not so grade at Minneapolis is not sufficient to establish a breach of that warranty. It appears, however, from both the pleadings and the evidence, that the plaintiff agreed to purchase, and the defendant agreed to sell, a car-load of No. 2 hard wheat, to be shipped to the Minneapolis market at the agreed price of 74J' cents a bushel; that the wheat delivered in the car by the defendant Johnson was wet and damaged; that it was not of the grade and quality agreed upon, and was in fact in such a condition that when it reached its destination it was not up to the standard of any grade at all, and that plaintiff had no opportunity to examine or inspect the wheat until it was received in Minneapolis. Under these circumstances, plaintiff was entitled to recover of defendant the difference between the price paid and the highest price the wheat would bring in the market where it could be sold. An examination of the plaintiff’s evidence, which is in no way questioned or disputed, satisfies us of its sufficiency to sustain the judgment.
For the foregoing reasons, the judgment of the' district court is
Affirmed.