Boyd v. Furnas.

"5. That the said Boyd has no right to the relief prayed for in said application, and has not the right in law to make said application.

"6. That said A. G. Frankman on the 1st day of April, 1875, assigned said judgment to one A. N. Goldwood, and that said Frankman was not the owner of said judgment at the time of his death."

On the hearing the court made the following order:

"This cause having been heretofore, on a former day of this term of court, to-wit, December 20, 1890, submitted to the court upon the motion of Charles H. Boyd, administrator of the estate of the said Adolphus G. Frankman, now deceased, to revive the judgment heretofore entered in this court in the above entitled cause, in favor of the said plaintiff and against the said defendants, which judgment has become dormant by lapse of time, and because of the death of the said plaintiff, and it appearing to the court that the order heretofore entered herein commanding the said defendants to show cause, if any there be, why said judgment should not stand revived has been duly served upon the defendant Robert W. Furnas, and that no sufficient cause has been shown by him why said judgment should not be revived, the court doth sustain said motion.

"It is therefore considered and adjudged by the court that the judgment entered herein on the 21st day of April, A. D. 1875, for the sum of $237.52, with interest on said sum from the said 21st day of April, 1875, at the rate of ten per cent per annum until paid, and costs of suit, taxed at $45.98, be, and the same hereby is, revived in the name of the said Charles H. Boyd, administrator of the estate of Adolphus G. Frankman, deceased, together with the costs of increase, taxed at $46.39, and the costs in this behalf expended, taxed at $10.30, and for all of which sums execution is hereby awarded."

The errors assigned are the same as in the answer.

It will be observed that the answer is exceedingly vague

Boyd v. Furnas.

and indefinite. Take the first assignment, that "the court has no jurisdiction of the subject-matter." It is not denied that the court has authority to revive a judgment which by lapse of time has become dormant. Such power is clearly conferred by statute and has been exercised by the courts wherever the facts justified the revival. (Eaton v. Hasty, 6 Neb., 419; Gillette v. Morrison, 7 Id., 263; Hunter v. Leahy, 18 Id., 80; Dennis v. Omaha National Bank, 19 Id., 675; Garrison v. C. Aultman & Co., 20 Id., 311; Creighton v. Gorum, 23 Id., 502.) In the case last cited a judgment was recovered in the county court, a transcript thereof filed in the district court, on which an execution was issued and returned unsatisfied. No other proceedings were had for more than nine years, when steps were taken to revive the judgment, and it was held that the plaintiff was entitled to an order of revivor. The court therefore had jurisdiction of the subject-matter and the first objection is overruled.

The second, third, and fourth assignments may be considered together. In substance they allege a want of authority to grant the relief sought. As stated in the first proposition, such authority does exist.

The fifth assignment, that Boyd has no right to relief prayed for, fails to assign any reason which would bar the right. The answer does not deny that he is administrator of Frankman's estate, and even if it did, the proof tends to show that he is such administrator and is entitled to have the judgment revived.

The testimony tends to show that in 1875 Frankman assigned the judgment to Goldwood as security; that Frankman was appointed subagent of Goldwood for the sale of sewing machines, and being unable to give a bond, he assigned $200 of the judgment in lieu thereof for the faithful performance of his duty; that he faithfully performed his duty and therefore the assignment did not become absolute. Goldwood is not here complaining nor claiming any

Reed v. Davis Milling Co.

rights in the premises, and in our view the proof is sufficient to entitle the plaintiff to recover.

Some objection is made to the form of the action, in effect that the action is brought in the name of the estate and not the administrator. It does appear that the action is brought by Boyd as administrator of the estate of Frankman, and that he is such administrator. There is no merit in the defense and the judgment is

THE other judges concur.

AFFIRMED.

REED BROS. & COMPANY v. R. T. DAVIS MILLING

COMPANY.

FILED JUNE 30, 1893. No. 5081.

Assumpsit: EVIDENCE: REVIEW. In an action on account for flour sold and delivered, a number of defenses were set up which the proof failed to sustain, and the jury having found for the plaintiff, held, that the judgment was right and no error in the record.

ERROR from the district court of Cass county. Tried below before CHAPMAN, J.

H. D. Travis, for plaintiff in error.

A. N. Sullivan and Gregory, Day & Day, contra.

MAXWELL, CH. J.

This is an action upon an account for flour sold and delivered to recover the sum of $261, with interest from September 1, 1890.

37 391 48 858

Reed v. Davis Milling Co.

To the petition the defendant below filed an answer as follows:

"Comes now the defendant herein and for answer to plaintiff's petition admits that the plaintiff is a corporation duly organized under the laws of the state of Missouri; admits that the defendant is a corporation organized under the laws of the state of Nebraska and doing a general merchandise business at Weeping Water, Nebraska.

"2. Defendant admits that on or about the 1st of September, 1890, the defendant purchased of and from the plaintiff a bill of goods, to-wit, flour; that the said flour was sold to defendant by plaintiff, the price of which was $633.20. But at the time of said sale and before the same was consummated the plaintiff, by its agent, stated and represented and warranted to the defendant that the aforesaid flour was first-class and equal to the brand of flour which defendant was selling at that time, and which said brand of flour was first-class. That defendant, relying on the aforesaid statements and representation so made by plaintiff, purchased the aforesaid flour, and agreed to pay the sum of $633.40 therefor in case flour was as represented; and by reason of the aforesaid warranty of plaintiff, defendant was induced to accept said flour, and place it upon the market, and to retail the same to its customers.

"3. That the aforesaid representations made by plaintiff as to the quality of the said flour purchased were not true, but that said flour was of an inferior grade or quality and of entirely different quality from that which defendant agreed to purchase from plaintiff, and of but little value, and which plaintiff agreed to furnish defendant, and that said flour purchased from plaintiff was wholly unfit for use.

"4. That it notified plaintiff that said flour was not flour as plaintiff represented it to be, and returned the same to plaintiff, whereupon the plaintiff represented to defendant that it had changed said flour for a better quality, and re

Reed v. Davis Milling Co.

turned to defendant; but defendant represents the fact to be that plaintiff did not change all of said flour, whereupon defendant returned said flour to plaintiff.

"5. That at the time of the purchase of said flour from plaintiff it had a large and valuable trade in flour and had the confidence of all its customers in that line of trade, but that by reason of the bad quality of the flour purchased from the plaintiff, and believing the representations of plaintiff to be true, and having sold some of said flour and recommended it to be as good quality as the brand of flour which it had been selling heretofore, defendant lost its retail flour trade, to the very great damage of defendant in the sum of $500.

"6. Defendant further represents that plaintiff is indebted to the defendant in the sum of $43.60, money paid out for use and benefit of plaintiff by defendant in connection with the transaction aforesaid.

"7. Defendant denies each and every allegation in plaintiff's petition contained not herein specifically admitted.

"Wherefore, by reason of the breach of warranty of plaintiff of the flour aforesaid, and the misrepresentation and fraud of plaintiff, the defendant has been damaged in the amount of $500; and plaintiff is indebted to the defendant for money paid out for plaintiff in the sum of $43.60. Defendant therefore prays judgment for $543.60 and the costs of this suit."

The reply need not be noticed.

On the trial of the cause the jury returned a verdict in favor of the defendant in error for the sum of $231, upon which judgment was rendered.

No objection to the instructions is made in the plaintiff in error's brief. It is true the rule as to the measure of damages as contended for is stated. Whether the rule contended for is correct or not we need not determine, as it is not alleged that the jury disregarded the instructions given by the court.