Fairbanks, Morse & Company, appellee, v. Harmon B. Austin et al.; Walter P. Mann, appellant, 96 Neb. 137

Rose, J. In the county court of Dawes county, Fairbanks, Morse & Company sued Harmon B. Austin, Walter P. Mann and L. Edgar Spragme for the purchase price of the following items of machinery alleged to have been sold and delivered by plaintiff to defendants: Gasoline engine, $150; pulley-blocks, $9.97. The county court dismissed the action as to. Sprague, and entered judgment against the other defendants, who had been partners.

Mann alone appealed to the district court, and there denied liability to plaintiff,, pleaded that no binding contract of purchase had been made; that Austin assumed payment of the firm debts; that plaintiff knew the partnership had been dissolved before delivering the machinery; that immediate shipment, though necessary, was delayed until defendants, through necessity, were compelled to buy another engine; that Austin took possession of the engine as a gratuitous bailee of plaintiff, retaining it for the latter; that plaintiff claimed title when the engine was in Austin’s possession; that the order for the machinery was countermanded.

On a trial of the issues the district court directed a verdict for plaintiff, and defendant Mann has appealed. The sustaining of a motion to strike a number of allegations from the answer is assigned as error. This assignment is unavailing because the ruling of the district court was not challenged by the motion for a new trial. The next assignment of error is the overruling of a motion, when plaintiff first rested, to direct a verdict in favor of defendant Mann. The petition stated a cause of action.

Plaintiff adduced evidence sufficient to support findings that the sale was made, that the machinery was delivered, and that the purchase price had not been paid. It is clear that there was no error in overruling the motion. Complaint is also made because a verdict was directed in favor of plaintiff. Both parties at the close of the evidence requested a peremptory instruction. The trial court was thus invited by both parties to render the judgment demanded by the pleadings and the evidence. There was; therefore no error in failing to submit issues of fact to the jury. Henton v. Sovereign Camp, W. O.

W., 87 Neb. 552. Moreover, the judgment seems on the face of the record to be just and fair. No specific error has been pointed out, nor has a plain error been found in the record. Affirmed.