
    H. A. Darner v. Daniel Daggett.
    Filed May 19, 1898.
    No. 8072.
    Sales: False Repeesentations: Character oe Goods: Evidence: Insteuctions: Review. In an action for damages because of false representations made by tbe vendor as to tbe correctness of an invoice of the goods sold, held there was no prejudicial error in permitting a witness to testify that certain goods were old, when that fact was important in determining' their real value tested by the invoice, and that this was especially the case in view of the/fact that the court afterwards instructed the jury that it should not take such evidence into account as furnishing a basis for recovery because of the quality of the goods in question being defective.
    Error from tbe district court of Dawson county. Tried below before Holcomb, J.
    
      Affirmed.
    
    
      O. W. McNamar and G. W. Fox, for plaintiff in error.
    
      E. A. Coolc, contra.
    
   Ryan, C.

In this case there has already been prosecuted proceedings in error in this conrt for the reversal of a judgment rendered by the district court of Dawson county. (Darner v. Daggett, 35 Neb. 695.) There was a reversal of said judgment, because there had been admitted in evidence a statement of a witness as to his estimate of the difference in value of the goods in the condition they were in as compared with what they wonld have been worth had they been as represented. This ruling was because of the fact that in the petition no claim had been made for damages, because of a misrepresentation by the vendor of the quality of his goods. The gist of the action, it was held, was for the recovery of damages from defendant for falsely representing that the invoice, on the' faith of which plaintiff purchased the stock of goods, was based upon the Chicago market, and errors in the footings of said invoice, and a shortage of the goods, tested by tbe invoice. The cause was remanded for a new trial, which was duly had, resulting in a judgment for plaintiff in the aforesaid district court.

The petition in error of the judgment defendant contains an assignment that the verdict was not sustained by the evidence, but we shall not enter into a detailed statement for the purpose of showing that this contention is unfounded. The errors urged with reference to the introduction of evidence proceed upon the assumption that there were the same errors which caused the reversal of the first judgment. In this view we cannot concur. It is true the district court refused to strike out statements of witnesses as to the goods being old or new, and it may be admitted that, over objections, testimony of that character, was permitted to go to the jury. But it was in evidence, likewise, that there was a difference in the invoice price of such goods dependent upon when they had been manufactured. For instance, one witness said of certain stoves that they were in use when he was a small boy, and that he had never seen any of that kind in stock or in use since he was a boy. When there was an attempt to show that these stoves were old, unserviceable, broken, rusty, and unsalable, the offer was rejected. There was no proof of damages because of defects of the character above indicated, and that there might be no misapprehension the following instruction was given to the jury:

“8. There are no allegations in the petition that the goods in controversy were of an inferior quality or character than as represented, and you will disregard any evidence bearing on that matter.”

It .is insisted that there was error in certain instructions, but the argument on that head is met by the above discussion of the evidence as to which objections were urged. In addition to these criticisms of the instructions it is objected that by one of them the jury was told to consider all of the evidence, and that this. instruction justified the consideration of that which should not have been taken into account. If there was error in this instruction it could not be considered, for no exception was taken to the giving of it. The judgment of the district court is

Affirmed.  