Jeffrey v. Fleming

42 N.W. 747, 26 Neb. 685, 1889 Neb. LEXIS 174

• Court: Nebraska Supreme Court
• Decided: June 13, 1889
• Status: Published

Opinion

Maxwell, J.

This action was brought against Phillip Fleming and Hortense Fleming, husband and wife, on an account for meat sold and delivered between the 25th of April, 1886, and April 23d, 1887. The amount of the bill is $71.53, which is admitted to be correct. On the trial of the cause the jury returned a verdict in favor of the wife, and a motion for a new trial having been overruled, judgment was entered on the verdict. The principal ground of error relied upon in this court is that the verdict is against the weight of evidence. .The testimony tends to show that in November, 1885, Phillip Fleming engaged in the business of keeping a restaurant in the city of York, and continued as proprietor of said restaurant during all the time the meat bill in question was being contracted. That he purchased this restaurant himself and gave two mortgages on the furniture therein, is undisputed. He also had an interest in a livery stable at that place, and the plaintiff testifies on cross-examination to the question:

Q,. He [Phillip Fleming] came there with considerable property ?

A. Yes, sir; said to have.

The credit, it appears, was given to “Fleming,” the surname of the parties; but the credit evidently was given to the husband; and there is no testimony in the record that would justify a jury in finding that the meat in question was purchased by the wife on her own credit, or that the restaurant was conducted in whole or in part as her property. The verdict therefore is right, and the judgment is affirmed.

Judgment aeeirmed.

The other Judges concur.