McCarter v. Cover , 122 Neb. 691 ( 1932 )

Rose, J.

This is an action to recover the amount due on the claim that plaintiff sold to defendant a town lot in Lexington and was to receive in part payment the stock and fixtures of a bakery in Grand Island, including a truck valued at $275 and rent of $45.75 — two items of consideration never received. The prayer was for judgment in the sum of $320.75, with interest from May 18, 1930.

In an answer to the petition defendant put in issue the facts entitling plaintiff to relief and pleaded a counterclaim of $650 for breach of warranty in the deed to the Lexington lot for which the bakery in Grand Island had been accepted in part payment. The alleged breach of warranty consisted of encroachments of buildings extending beyond the boundary of an abutting lot. This claim was contested by plaintiff.

Before the district court without a jury, there were spirited trials which resulted in a judgment for $355.85 in favor of plaintiff for the price of the truck and the unpaid rent, and in a judgment for $445.08 in favor of •defendant on his counterclaim for breach of warranty. Defendant appealed from the judgment for $355.85.

The judgment from which the appeal was taken is challenged for assigned errors in rulings on evidence and for insufficiency of the evidence to justify the conclusion reached by the district court. All material evidence offered on either side was admitted during the trial. In an action at law tried to the court without a jury, the presumption on appeal is that competent evidence only was considered in the determination of the issues. The entire record has been examined with care and it shows an abundance of competent evidence, to support the judgment. In such a case the findings have the same effect on appeal as the verdict of a jury. Prejudicial error has not been pointed out.

Affirmed.