DocketNumber: No. 17,445
Citation Numbers: 94 Neb. 824
Judges: Fawcett, Hamer, Lbtton, Sedgwick
Filed Date: 12/24/1913
Status: Precedential
Modified Date: 7/20/2022
This was an action upon a contract by which the plaintiff sold some nursery stock to the defendant, and was within the jurisdiction of a justice of the peace, and begun in the county court of Holt county. It was after-wards appealed to the district court for that county, and, from a verdict and judgment in favor of the plaintiff, the defendant has appealed.
The contention of the defendant is that the evidence shows that the defendant countermanded the order for the nursery stock before it was delivered, and that the plaintiff has sued upon the original contract for the purchase price thereof. Under such circumstances it is contended that the plaintiff’s cause of action was not upon the original contract, but was for damages in countermanding and refusing to perform the contract. The defendant in his answer set up at great length allegations of fraud and misrepresentation in procuring the contract, and alleged that for that reason he had countermanded the contract. This allegation was denied in the reply. The court submitted to the jury in its instructions the question whether the contract was procured by fraud or was a valid contract in its inception, and also the question whether the contract or order had been countermanded by the defendant, and stated correctly what the measure of damages would be in case the jury found that the contract was valid and had not been countermanded, and what the measure of damages would be in case they found it was valid and had been countermanded by the defendant. It is objected that this instruction was erroneous
The judgment of the district court is '
Affirmed.