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(186 N.W.)

which he was proceeding, and that he was plaintiff would be entitled to recovery; but, not exercising due care and caution. if the jury found from a preponderance of

The trial resulted in a verdict and judg- the evidence that the plaintiff was guilty of ment for the defendants.

negligence, which contributed to cause his injury, then the plaintiff's right of recovery would be governed or modified by the rule set forth in instruction No. 5.

[1] Error is assigned in submitting to the jury the question of negligence on the part of the plaintiff. The evidence, while conflicting, shows that the plaintiff had at least We believe that instruction No. 4 clearly some familiarity with the location and con- sets forth the rule applicable in this case. dition of the walk at the place of accident; The plaintiff was told what he must estabthat he occasionally walked over it, and had lish by a preponderance of the evidence, and done so during the cold and freezing weather that, if he did so, he could recover; but, if the same month. The weather had been con- the jury found by a preponderance of the evitinuously cold for some days, and at the time dence that he was guilty of contributory negof the accident it was very cold, about six ligente, that his recovery would be governed degrees above zero, the plaintiff was carry- by the rules set forth in instruction No. 5. ing some groceries and was going on a slow Instruction No. 5 states the right of recovery trot or a "dog trot" along the sidewalk in in the event of contributory negligence and question. The sidewalk was of concrete, of comparative negligence. Under instrucand had a driveway where automobiles en- tion No. 4 the jury could not have mistaken tered the building, which was somewhat on whom the burden rested to prove conslanting toward the curb. Under the testi-tributory negligence. While the burden mony in this case, whether the plaintiff was rested upon the defendants, yet, the jury, in proceeding with such care as an ordinarily prudent person would exercise under similar circumstances was a question of fact, as to which different minds might draw different conclusions, and was therefore properly submitted to the jury.

determining that question, would properly take into consideration, not only the evidence offered by the defendants but the evidence offered on behalf of the plaintiff as well. The instructions given sufficiently stated the rule. If the plaintiff desired a more specific instruction on that point it should have been requested.

Affirmed.

Complaint is made of giving instructions Nos. 5 and 11 to the jury. These instructions were called for on account of submitting the issue of plaintiff's negligence to the jury. Having reached the conclusion that the court was justified in submitting the question of contributory negligence to the jury, it fol- PHELPS et al. v. SHUCK. (No. 21636.) lows that such instructions were properly (Supreme Court of Nebraska. Jan. 13, 1922.) given.

Instruction No. 11 is further criticised as

advising the jury that, if they should find certain facts to be true, they must find that the plaintiff was negligent. As we read the instruction, it is not subject to that criticism. The jury are merely informed that, if the plaintiff had knowledge of the facts referred to, then the plaintiff was bound to use due care and caution in passing over the walk, and that the failure of the plaintiff to use such due care and caution would be negli

gence.

[2] It is further contended by the appellant that the trial court erred in failing to instruct the jury that the burden was upon the defendants to prove by a préponderance of the evidence the plaintiff's alleged contributory negligence. By instruction No. 4 the jury were told that the burden of proof was on the plaintiff to prove by a preponderance of the evidence the negligence charged in the petition; that such negligence was the proximate cause of his injury; and the amount of damages he suffered, if any; and that, if the plaintiff had proved all the above facts by a preponderance of the evidence, the

(Syllabus by the Court.)

1. Sales 130(1), 425-Remedies of purchaser by false representations enumerated; suit after rescission for purchase money held not one on guaranty.

A party induced to purchase property, by false representations respecting the character of the property, to whom a written guaranty is given, covering the representations made, providing for the return of the property and of the consideration therefor in case the property does not prove as represented, upon discovery of the falsity of such representation, may elect to rescind the contract of purchase and recover back the purchase price paid, or he may sue on the written guaranty for damages for breach thereof. If he elects to rescind the contract and brings suit therefor, it is not an action on the guaranty.

2. Action 45(1)-Petition for rescission and return of purchase price stated but one cause.

A petition by two plaintiffs, which alleges that they were induced to purchase property the defendant respecting the property, and alof defendant by false representations made by leges that said representations were made by defendant both by parol and in writing, alleging that the written representations were

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

made in an instrument which is copied in the petition, which instrument was addressed to one of the plaintiffs only, and contained the representation charged to be false, and also a statement that the seller agreed to guarantee the property to have certain qualities, and, if not as represented by him, to take it back and refund all money paid therefor, which petition also alleges plaintiffs' election to rescind the purchase, and also alleges all other facts necessary in an action based on a rescission of a contract for purchase, states but one cause of action; i. e., an action by both parties purchasing said property for rescission and return of the purchase price paid by them therefor. It does not state a cause of action on the agreement to guarantee.

Appeal from District Court, Webster County; Dungan, Judge.

Suit by Arthur C. Phelps and another against George W. Shuck. Judgment of dismissal on demurrer, and plaintiffs appeal. Reversed and remanded.

F. H. Stubbs and J. H. Agee, both of Superior, for appellants.

F. J. Munday, of Red Cloud, for appellee. Heard before MORRISSEY, C. J., ROSE, ALDRICH, and FLANSBURG, JJ., and GRAVES and WELCH, District Judges.

age at the time of such sale, was twelve years of age, which fact was well known to the defendant, and that plaintiffs would not have bought said stallion from defendant if they had known its true age. The petition further alleged that plaintiffs first learned of the true age of said stallion about March 8, 1917, and that they immediately notified defendant thereof and of his said misrepre sentation and of their intention to rescind said purchase; and on or about the 14th day of March, 1917, plaintiffs did elect for said reasons to rescind said contract of purchase, and so notified defendant, and demanded of defendant return of the purchase price paid for said stallion, but defendant refused to consent to rescission and refused to return to plaintiffs the consideration and purchase price of said stallion, and that plaintiff's offered to return said stallion to defendant, which offer the defendant refused. The petition also alleges that, as a part of the consideration for said horse, plaintiffs executed and delivered to defendant their promissory note for the sum of $400 and secured the same by a chattel mortgage, and that, as soon as the defendant was advised that plaintiffs had discovered the true age of said stallion and that plaintiffs desired to rescind said contract of purchase, the defendant immediately thereafter, and on or about the 15th day of March, 1917, and before said note was due, for the purpose of denying to plaintiffs the right to make their defense of said note, sold and assigned and delivered said note and chattel mortgage to the Citizens' State Bank of Superior, Nebraska; that thereafter said Citizens' State Bank sold said stallion under said chattel mortgage, at which

ANSON A. WELCH, District Judge. The appellants filed in the court below their petition, in which they alleged that on April 14, 1916, they purchased from the defendant one stallion, which the defendant, for the purpose of inducing plaintiffs to purchase, fraudulently represented and stated to the plaintiffs to be nine years of age and no more. The petition further alleges that said repre-sale there was realized the sum of $42 which sentation as to the age of said stallion was made by the defendant both by parol and in writing, and that said written representation was in the following words and figures:

"Guide Rock, Nebr., April 14, 1916. "Mr. A. C. Phelps, Superior, Nebr.-Dear Sir: In consideration of your purchase from me today of my black stallion, age nine years, weight 2,150 lbs., called 'Prince,' I agree to guarantee the said stallion to be a good breeder, sound in all respects with the exception of a wind-puff on left hind leg, and I further agree in the event that the said stallion 'Prince' shall

not prove as represented above, or in the event that he should be rejected for any cause by the state inspector of stallions, to take said stallion back, and refund any and all money you have paid for him, not exceeding $500 and interest. [Signed] Geo. W. Shuck."

The petition also alleged that plaintiffs had no knowledge or information as to the age of said stallion, and that they relied upon said representations, and were induced thereby to purchase said stallion and agree to pay the defendant therefor the sum of $500 and that said stallion, instead of being nine years of

was applied on said note of plaintiffs, and that plaintiffs have since said sale paid the balance on said note.

The defendant demurred to the above petition on the grounds: (1) That several causes of action are improperly joined. (2) That the petition does not state facts sufficient to constitute a cause of action. The court below sustained the demurrer, and plaintiff's elected to stand on the petition, whereupon the court below rendered judgment of dismissal.

[1] It is an elementary rule of law that a party induced to purchase property by false representations of the seller has the election to rescind such purchase on the discovery of the falsity of such representations, return the property, and recover back the consideration paid therefor, or he may retain the property and recover his damages sustained by reason of said false representations.

In order to work a rescission it is not necessary, in case of offer to return the property to the seller and notice to him of the elec tion to rescind, that the property be actually tendered to him at the place of purchase, if upon such offer to return the property the

(186 N.W.)

seller refuses to accept the same. Sherrill v. | plaintiff giving conversations during the courtCoad, 92 Neb. 406, 138 N. W. 567.

[2] The petition alleged the purchase by both plaintiffs; the representation to plaintiffs that the stallion purchased was but nine years old; that plaintiffs were induced thereby to purchase said property for the consideration of $500; that at the time of such purchase said stallion was of the age of twelve years, which fact was known by appellee herein, and contained all the other allegations necessary to state a cause of action based upon the rescission of said contract of purchase. The fact that said representations as to the age of said stallion were included in a written statement signed by defendant addressed to one of the plaintiffs, in which defendant agreed to guarantee the said stallion to have certain qualities, and, in the event that it did not prove as represented, to take back said stallion and refund all money paid, which written statement is set forth in the petition, would not make the petition state a cause of action on said agreement to guarantee, for the reason that said petition shows the election of the party to whom said statement was addressed to rescind said con

ship, in which defendant told her what he was worth financially and of what his property consisted.

3. Breach of marriage promise 35-Instruction that jury might consider defendant's property and financial standing held not er

roneous.

In such a case, where plaintiff was the only witness, and the above was the only proof on the subject, it was not error for the court to instruct the jury that an element for them value of the defendant's property and his finanto consider in measuring the damages was the cial standing.

Appeal from District Court, Adams County; Dungan, Judge.

Action by Etta V. Higgins against Ira R. Doty. Judgment for plaintiff, and defendant appeals. Affirmed, on condition that plaintiff remit portion of damages assessed.

Stiner & Boslaugh, of Hastings, and W. G.
Hastings, of Omaha, for appellant.

J. E. Willits, of Hastings, for appellee.
Heard before LETTON, DAY, and DEAN,

tract of purchase on account of the alleged JJ., and CORCORAN and GOSS, District false representation as to the age of said Judges. stallion, and to not sue on said agreement to guarantee. After such election and exercise GOSS, District Judge. Plaintiff sued deof his option he could not sue on the contract. fendant for damages for breach of his alThe petition shows that he has elected to leged promise to marry her. The jury rejoin with his coplaintiff in an action based turned a verdict for plaintiff, judgment was upon their rescission of said contract for the rendered thereon, and defendant appeals. purchase of said stallion, on account of the Plaintiff was the only witness. She introalleged false representations made by the deduced thirteen letters received from the defendant whereby they were induced to purchase said stallion.

The court below, therefore, erred in sustaining defendant's demurrer and dismissing this action. The judgment of the court below is therefore reversed and cause remanded. Reversed.

HIGGINS v. DOTY. (No. 21691.) (Supreme Court of Nebraska. Jan. 13, 1922.)

(Syllabus by the Court.)

1. Appeal and error 997(3)-Verdict on evidence on which reasonable minds cannot differ not disturbed.

Where the evidence on the trial in the dis

trict court is not conflicting, and reasonable minds cannot differ as to the conclusion to be derived therefrom, a verdict directed by the court in accordance with such conclusion will not be disturbed on appeal.

fendant, testified in her own behalf, was cross-examined, and rested. Defendant offered no evidence. The court, on his own initiative gave the jury two instructions: First, to return a verdict for the plaintiff; and, second, defining the measure of damages. The defendant tendered three instructions on his theory of the case and they were refused.

Appellant argues strenuously that the court erred in deciding as a matter of law that the marriage between the parties. evidence conclusively showed a contract of He insists

that the evidence does not show mutual promises, and particularly does not show that she agreed to marry him.

The letters from appellant to appellee were

written by him at Hastings, his home, to her

at Beatrice, where she was temporarily, between August 2, 1915, and June 4, 1916. He was a bachelor, an auctioneer, trader, owner of farm lands and of rental property in the city of Hastings. She had been unmarried 2. Breach of marriage promise 21-Evi- for about eight years, following a divorce dence as to defendant's statements of his obtained from her husband. financial condition admissible.

The parties

had been acquainted for years. At one time In an action for damages for breach of she had rented a house from him and he had promise to marry, it was proper for the trial boarded with her and her family therein. court to receive in evidence testimony of the She says there had been oral talk of mar

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

riage between them, and she was pleased [forts which ordinarily would result to the when she received a letter, dated August 15, plaintiff, they might consider the value of 1915, from him, in which, following some ob- the defendant's property and his financial servations about members of his family, he standing. He asserts that there is no com

wrote:

"I expect they will all go up in smoke when you and I are married. But they will have to go. I only wish I had of built last summer and now I would of had a home."

petent evidence in the case as to his actual wealth or as to his reputed financial standing. The plaintiff testified that the defendant told her during the engagement that he was well fixed, was making money right along, and that he was worth $70,000 or $75,

His letters are replete with suggestions of repairing a house to live in and of build-000. But appellant argues that it was error, ing a new one, and the like. They contain Dole, 45 Neb. 472, 63 N. W. 875, to permit

expressions such as:

"And it is going to be hard to get a place while we built." "My, how I wish we had the house finished and we were settled in it." "Erma [his niece] is planning on staying with us for a while at least. *The north flat is vacant. Believe I will rent it and put her things in it and then we will be handy to build." "It is you I want to be careful, for I am going to need you so bad by and by and you cannot tell how soon." "We may have to take Erma to live with us. I told her I was going to marry you. Lovingly, Ira."

under the rule announced in Stratton v.

her to testify to statements made by appellant to her as to his property or as to his actual wealth. We find, however, that in Stratton v. Dole, supra, the plaintiff was permitted to relate what the mother of the defendant told her, touching the defendant's property and its value. Ordinarily hearsay, this evidence was admitted on the theory that the mother, at the request of the son, having procured the plaintiff to receive him as a suitor and being otherwise actively engaged in promoting the marriage agreement, was his agent. If the agent can bind her principal in such circumstances, it must be true that the principal can bind himself to similar declarations as to property and as to financial worth in a like case.

These sufficiently express the marital intention of appellant, and she testified that there were oral expressions by him of like character. But it is argued that the promises were not mutual, in that she failed to show any promise on her part. Appellant The only evidence in this case was that seems to overlook the question on cross-ex- furnished by the plaintiff. She did not unamination and her answer, when she said dertake on her own initiative to specify dethat her letters to him (none of which were fendant's property or to give his reputed put in evidence) indicated that she wanted financial worth. She merely told what he to marry him. Moreover, the oral evidence had said to her as to his property and his shows that he went to visit her several times financial worth. The context, separated only in Beatrice, and they discussed this mar- by a semicolon, properly limited their conriage, the building of their future home on sideration to the evidence in the case. his Fifth street lot in Hastings, and he set we cannot find, under the unique circumthe first of the year as the date for their stances of this particular case, that the court marriage.

So

erred in telling the jury that one element in the evidence for them to consider was the value of defendant's property and his financial standing.

[1] We conclude from all the evidence that there were mutual promises of marriage, and that both parties were bound thereby. Different minds could not honestly draw dif- It is urged that the damages are exces-· ferent conclusions from the undisputed facts. sive. Such matters are, within reason, for No jury of reasonable men could have found the jury to assess. However, when we condifferently. The court did not err when he sider the meager, indefinite and secondhand directed a verdict for plaintiff. Burke v. character of the evidence as to the financial First Nat. Bank, 61 Neb. 20, 84 N. W. 408, worth of the defendant and the general cir87 Am. St. Rep. 447; Cannell v. Roush, 89 cumstances shown in the evidence, we think Neb. 289, 131 N. W. 222; Thomas v. Otis Elevator Co., 103 Neb. 401, 172 N. W. 53.

[2, 3] Appellant says the court erred in his second instruction to the jury, in which he instructed the jury that, in taking into consideration the loss of a home and the com

$7,500 will fully compensate the plaintiff. If plaintiff will file a remittitur of $2,500 in this court within 20 days, the judgment in the lower court will be affirmed for $7,500 as of its date; otherwise, it will stand reversed. Affirmed on condition.

(186 N.W.)

FOSTER v. CITY OF LINCOLN et al. (No. 21711.)

(Supreme Court of Nebraska. Jan. 13, 1922.)

(Syllabus by the Court.)

Appeal and error 175-Issues framed in

trial court binding on appeal.

The issues as framed in the trial court, and upon which the cause was tried, are binding upon the parties in the case, on appeal to this

court.

two concurrent causes acting separately and independently concurred in causing the accident, and the two constituted a proximate cause of the accident. This contention, for reasons already stated, is not supported by the allegations of the petition, and no amendment thereof was obtained or requested.

The question of the sufficiency of the insulation of the city's wires was submitted by the court's instructions as to negligence on the part of the city.

It is also contended that the court misstated the issues in reference to the plain

Appeal from District Court, Lancaster tiff's reply as to the condition or construction County; Shepherd, Judge.

Action by John Foster against the City of Lincoln and another. Judgment for defendants, and plaintiff appeals. Affirmed.

J. S. McCarty, of Lincoln, for appellant.
C. Petrus Peterson, Chas. R. Wilke, R. A.
Boehmer, and Hall, Baird & Williams, all of
Lincoln, for appellees.

Heard before LETTON, DAY, and DEAN, JJ., and BLACKLEDGE and TEWELL, District Judges.

by the city of its system of poles and wires, but while the statement in the instruction in reference thereto may appear, upon critical examination by lawyers, to be a little broad, we are satisfied that it could not mislead the jury, and that the purport of it, as it was intended by the court and must have been reasonably understood by the jury, was to the effect that the description as to the general construction and relative locations of the two systems of wires was admitted by the parties, and not in dispute.

Finding no prejudicial error, the judgment is

Affirmed.

STRIBLING et al. v. FRATERNAL AID
UNION. (No. 21573.)

(Syllabus by the Court.)

Insurance 723 (10)-Issuance of certificate to beneficiary not within class allowed held ultra vires.

Where the statutes of the state under which

BLACKLEDGE, District Judge. The proposition urged in the argument and principally relied upon in the briefs as constituting error is that the court erred in not submitting to the jury the question of the joint negligence of the city of Lincoln and the codefendant Lincoln Telephone & Telegraph Company. It is not disputed that the plaintiff was an employee of the Lincoln Telephone (Supreme Court of Nebraska. Jan. 5, 1922.) & Telegraph Company and sustained injury in the course of his employment, and at or before the commencement of this suit was receiving compensation from his employer uinder the provisions of the Workmen's Compensation Act. Laws 1913, c. 198. He states in his petition the amount of compensation he has received and that the Lincoln Telephone & Telegraph Company declines to bring this suit against the city of Lincoln, the third person. The petition further alleges that "the injuries hereinbefore complained of were occasioned wholly by and on account of the negligence and carelessness of the defendant city of Lincoln." Plaintiff prays for judgment against the city of Lincoln only, and that out of any sums so recovered the defendant Lincoln Telephone & Telegraph Company be paid the sum paid by it to plaintiff as compensation. Under these allegations it was entirely proper that the trial court should not submit the question of the joint negligence of the two defendants.

It is urged in the brief that it was negligence of the city in maintaining its insufficiently insulated wires near the wires of the telephone company, and also the negligence of the telephone company in maintaining its wires near the heavily charged wires of the city which caused the injury, and that these

a mutual benefit association is organized, as well as its own by-laws, specify the classes of persons in whose favor a beneficiary certificate may be issued, and a member of such association, by false and fraudulent representations that the beneficiary named by him comes within one of the classes specified, procures a certificate to issue in favor of such person, such issuance is ultra vires, and no recovery may be had upon the certificate either by the beneficiary named or by the heirs at law.

Appeal from District Court, Lancaster County; Clements, Judge.

Suit by Sarah E. Stribling and others against the Fraternal Aid Union. Judgment for plaintiffs, and defendant appeals. Reversed and remanded.

Fawcett & Mockett, of Lincoln, and George R. Allen, of Kansas City, Kan., for appellant. T. S. Allen, of Lincoln, for appellees.

Heard before MORRISSEY, C. J., and ALDRICH, DAY, DEAN, FLANSBURG, LETTON, and ROSE, JJ.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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