Pratt v. Smith

94 N.W. 104, 68 Neb. 151, 1903 Neb. LEXIS 147

• Court: Nebraska Supreme Court
• Decided: March 18, 1903
• Docket: No. 12,689
• Status: Published

Opinion

Sullivan, C. J.

This action involving an examination of a long list of mutual charges and credits was submitted to a jury, who returned a verdict in favor of the plaintiff for $2.15. Two assignments of error are discussed by counsel for defendant. They are as follows:

“1. The court erred in permitting the plaintiff in said court to introduce an item or items for team work amounting to $40, said item or items being no part of the amount sued upon or sought to be recovered by the plaintiff, and was not in his items of account against the defendant .and not in the plaintiff’s petition.

“2. The defendant ivas surprised by the introduction of said item of $40 introduced by the plaintiff' for team work, he having no knowledge that such item of charge existed and was not prepared to meet it and answer thereto, the same being material to the issue changing the computation of the jury resulting in a verdict against the plaintiff.”

The difficulty with these assignments is that they have no adequate foundation in the record. If the item for team work was not in the petition when the trial was commenced, the record fails to show that fact. It is certainly in the petition now and there is no evidence of an amendment having been made during the trial. Error will not be presumed; it must appear affirmatively.

The judgment is

Affirmed.