Allen v. Meetz

Eawoett, J.

Action in the district court for Pierce county, upon two promissory notes given as the consideration for the purchase of a threshing'machine, consisting of a separator and loader. Petition in the usual, form. The answer admits the execution and delivery of the notes; alleges failure of the consideration therefor, in that the machine was defective, would not do the work for which it was designed and purchased, even after several opportunities were given plaintiff to remedy the defects; that defendant placed the machine under a shelter at his residence, and notified plaintiff that it was there, .subject to his order, and that subsequently plaintiff took possession of the machine. Defendant also sets up a counterclaim, consisting of a number of items aggregating over $800. The reply is in substance a general denial, with an allegation that plaintiff furnished an expert who adjusted and put the machinery in working order, and that defendant on October 9, 1903, and again three days later, acknowledged in writing that said machinery was operating in a satisfactory manner. There was a trial to a jury, with a verdict in favor of defendant and against the plaintiff on plaintiff’s causes of action, and in favor of defendant upon his counterclaim, for one cent. Plaintiff appeals.

Objection is made to instructions 2 .and 5, given by tbe court on its own motion. In each of these instructions tbe court is simply stating tbe issues, No. 5 being directed to the reply. Tbe only objection urged to No. 5 is that it omits tbe allegation in tbe reply in relation to tbe Avritten acknoAvledgments of October 9 and 12. We think tbe instruction states, all that was material. The two written statements omitted were introduced in evidence, and, under other instructions properly given, plaintiff bad tbe full benefit of both; lienee, be Avas not in any manner prejudiced by tbe failure of tbe court to refer thereto in instruction No. 5.

We have examined tbe evidence, and find that it is ample to sustain the verdict of tbe jury.

Finding no reversible error in tbe record, tbe judgment of tbe district court is

Affirmed.