Blodgett v. Swanson Bros.

179 N.W. 1011, 105 Neb. 191, 1920 Neb. LEXIS 32

• Court: Nebraska Supreme Court
• Decided: November 10, 1920
• Docket: No. 21119
• Status: Published

Opinion

Letton, J.

This action was begun in justice court to recover $83.97 for work and labor, and $13.90 for goods paid for but not delivered. The justice found defendants were entitled to a set-off of $17.20, and found for plaintiff in the sum of $68.75. Defendants appealed to the district court. The petition in that court was unverified. A motion to strike was filed by defendants, but not ruled upon. Afterwards defendants filed a general denial and counterclaim. The jury returned a verdict for plaintiff for $97.87 with interest, amounting to $101.52. Defendants appeal.

The petition in the district court pleaded an item of $18.72 due plaintiff upon a settlement, in addition to the items sued upon in justice court. No motion was made to strike this item as not within the issues below.

The principal controversy at the trial was as to certain charges made against plaintiff by defendants for storage and work on his cars. There was a conflict of evidence as to these items. The jury settled them in favor of plaintiff, and we see no reason to disturb its findings in this respect.

It is argued that the judgment should be reversed because the petition was unverified, but defendants waived verification by the filing of the answer.

The amount of the verdict is complained of. According to plaintiff there was $18.72 due him on a settlement made on January 2,1918. Afterwards there was due him $83.97 for labor, and $13.90 for parts paid for but not furnished by defendants, making a total of $116.59. In addition to the credits he allows in the petition, his own testimony is to the effect that on January 8 he received a check of $15 for which no credit was given. The verdict, therefore, is excessive to the amount of $15 with interest from January 8, 1918. The amount being fixed and determined, the judgment will be reversed and the canse remanded for further proceedings, unless the plaintiff enters a remittitur of $15 with interest from January 8,1918, within 20 days, in which case it will stand affirmed.

Affirmed on condition.