Dohner v. Barr

158 N.W. 965, 100 Neb. 172, 1916 Neb. LEXIS 152

• Court: Nebraska Supreme Court
• Decided: July 1, 1916
• Docket: No. 18889
• Status: Published

Opinion

Fawcett, J.

Action to recover a balance of $50 for money loaned. Plaintiff recovered, and defendant appeals.

The errors assigned are that the court by its instructions to the jury eliminated defendant’s plea of payment;.that the court refused to give certain instructions requested by defendant; that the court neglected to give any instruction covering defendant’s theory that the money had been paid; and that the verdict is not sustained by sufficient evidence. The evidence is in sharp conflict. It would have sustained a verdict either way. The jury accepted the testimony offered by plaintiff, and an experienced district court, who saw the witnesses upon the stand and heard them testify, approved the verdict by entering judgment upon it. This must be held conclusive on the question of the sufficiency of the evidence.

We have examined the instructions given by the court, also those requested by defendant, and are unable to discover any error either of omission or commission. The defendant’s plea of payment was properly submitted. Everything requested by defendant in instructions refused, which was proper to go to the jury, was covered by the court’s instructions. The instructions we think fairly covered defendant’s theory that the money had been repaid.

Finding no prejudicial error in the record, the judgment .of the district court is

Affirmed.

Sedgwick, J., not sitting.