Parker v. Loudon

114 N.W. 933, 80 Neb. 647, 1908 Neb. LEXIS 35

• Court: Nebraska Supreme Court
• Decided: February 6, 1908
• Docket: No. 14,925
• Status: Published

Opinion

Good, 0.

Plaintiffs sued to recover the contract price for pasturing 61 head of cattle for the defendant for the season of 3.905. The defendant answered, admitting the contract, and alleged the delivery of a greater number of cattle to the plaintiffs for pasturage, and that, pursuant to the contract, he was entitled to recover the value of the cattle not. returned to him at the close of the grazing season. Plaintiffs replied with a general denial. On a trial of the issues a jury returned a verdict for the full amount claimed by the plaintiffs, and defendant appeals to this court.

It is conceded that 61 head of cattle were returned or properly accounted for by the. plaintiffs. There is a hopeless conflict of the testimony as to whether a greater number than 61 were delivered to the plaintiffs for pasturage. There, is ample evidence to sustain either contention. The jury evidently believed the plaintiffs’ evidence, and found accordingly. The rule is well established in this jurisdiction that the findings of a jury based upon conflicting evidence will not be disturbed.

Defendant complains of certain instructions of the court, but has not pointed out any rule of law that has been violated, and examination of the instructions fails to disclose any error therein.

Defendant also complains of tbe introduction of certain evidence, particularly of tbe admission of an assessment roll, but tbe bill of exceptions does not disclose that tbe assessment roll is included in or attached to it. After diligent search we are unable to find this bit of evidence in tbe record.

No error being apparent, tbe judgment , of tbe district court should be affirmed.

Duffie and Epperson,- 00., concur.

By tbe Court: For tbe reasons given in tbe foregoing opinion, tbe judgment of tbe district court is

Affirmed.