Eaton v. Fairbury Water-Works Co. levied. Let us suppose that this tax had been paid for disbursement to a contractor who built sidewalks, or laid down pavements for the city. Could it reasonably be claimed that this fact gave the taxpayer any special ground of recovery against the contractor for injuries received by reason of a failure to complete the works of improvement as agreed? Manifestly in the case supposed there is no privity between the contractor and the taxpayer, no matter how solemnly the contractor had agreed to perform the work in a specified time or manner. In such a case there might be a right of recovery against the city. In the one under consideration there could not, even if it assumed directly to furnish water to the consumer. "The reason is that the hazard of pecuniary loss might prevent the corporation from assuming duties which, although not strictly corporate nor essential to the corporate existence, largely subserve the public interest. The supplying water for the extinguishment of fires is precisely one of those acts which bring no profit to the corporation, but are eminently humanitarian. To hold a city responsible for the loss of a building, or of whole streets of houses, as sometimes happens, because it might be thought, or because in reality some of its indispensable agents had been negligent of their duty, might well frighten our municipal corporations from assuming the startling risk." (Foster v. Lookout Water Co., 3 Lea [Tenn.], 49, supra.) The liability of the water-works company in this case could not, therefore, devolve upon it by reason of its assumption of certain functions which might properly be assumed by the municipal corporation, for the municipality itself would not be liable under the circumstances, and its right of exemption extends to its substitute. The plaintiff has not established any privity of contract between himself and the defendant, and we conclude that no action would lie in favor of plaintiff upon the facts Wellington v. Moore. stated in his petition. The judgment of the district court is therefore RAGAN, C., concurs. AFFIRMED. IRVINE, C., having been of counsel in the above cause, took no part in its consideration or decision. L. D. WELLINGTON ET AL. V. HATTIE M. MOORE. FILED SEPTEMBER 20, 1893. No. 4718. Conversion: DAMAGES: EVIDENCE. Where the action is for the value of property alleged to be wrongfully detained by the defendant, and for damages for such wrongful detention, it is reversible error for the plaintiff, over proper objections, to testify as a conclusion the amount of damages she has sustained independently of the value of such property. RAGAN, C., dissents. ERROR from the district court of Thayer county. Tried below before MORRIS, J. O. H. Scott and S. A. Searle, for plaintiffs in error. Manford Savage, contra. RYAN, C. On the 6th day of December, 1888, Hattie M. Moore filed her petition in the district court of Thayer county, Nebraska, in which she claimed, as owner, the immediate possession of certain goods and chattels, which she alleged were wrongfully detained by, and in the possession of, the defendants W. J. Green and L. D. Wellington. In due time an answer in general denial was filed by the defend ants. The action was finally tried as one for the conver Wellington v. Moore. sion of the goods and chattels, and a verdict was rendered in favor of the plaintiff for the sum of $383.75. The defendant Wellington, as constable, justified his possession of the property by the production of executions and judgments in favor of judgment creditors of the husband of Mrs. Hattie M. Moore. As is quite common where the relationship shown exists, the contention was, upon the trial, that the alleged ownership of Hattie M. Moore was fraudulently asserted solely to prevent the application of the property in dispute to the payment of her husband's just debts. In the arguments there has been quite an extended discussion of the sufficiency of the testimony to sustain the verdict. It will suffice to say on this head, that if that was the only question in the case, we are not satisfied that the verdict was so far without support as that the judgment upon the verdict should be reversed. Neither do we find that that result should follow upon the several questions of law urged, except as to the one which we shall presently notice. The action as tried was for the value of the property alleged to have been converted and for damages incidental to such conversion. In her own behalf the plaintiff was sworn and upon her examination was asked the following question: Q. You may state what your damages were that you sustained by reason of the taking of these goods, outside the value thereof? To this question objections were duly made and overruled, to which there was a proper exception; whereupon the plaintiff answered: A. I think the damages were $500, if not more. It is obvious that this testimony was not as to a fact; it was as to a conclusion, which rested solely with the jury to find from a consideration of all the facts. It was the testimony of a witness as to damages which she believed that she had suffered, without in any way stating the several Wheeler v. Olson. items thereof or the grounds upon which she predicated her opinion of the damages testified to by her. The testimony given was clearly incompetent, and no instruction of the court or evidence afterwards given could do away with its effect. This court has already held in a similar case that a question and answer less objectionable than that at bar was incompetent. (See Burlington & M. R. R. Co. v. Beebe, 14 Neb., 463.) It follows that the judgment of the district court is REVERSED. IRVINE, C., concurs. RAGAN, C., dissents D. N. WHEELER V. SWAN OLSON. FILED SEPTEMBER 20, 1893. No. 5265. 1. Motion for New Trial: AFFIDAVITS: BILL OF EXCEPTIONS: REVIEW. Upon the consideration of a motion for a new trial where there were used several affidavits, and the clerk of the court wherein the trial was had having identified said affidavits, and counsel for the respective parties having stipulated that the foregoing (affidavits) contained all the evidence offered on either side on the motion for a new trial, and counsel upon whom was served the proposed bill of exceptions having returned the same without suggestion or amendment, and the said clerk having settled the proposed bill of exceptions as by law provided in such cases, a motion to strike out said affidavits because not shown to have been used on the determination of said motion, or identified in the bill of exceptions, must be overruled. 2. New Trial: EXCUSE FOR ABSENCE OF PARTY AND WITNESSES: HEARING AND RULING ON AFFIDAVITS: REVIEW. The ruling of the trial court upon a motion for a new trial, predicated upon the inability of the defeated party to attend the trial with his witnesses because of the impassable condition of the public highways, will not be disturbed when a counter showing Wheeler v. Olson. has been made which raises serious doubts as to the existence of the facts upon which the defeated party relies to excuse his nonattendance at the trial. ERROR from the district court of Cuming county. Tried below before NORRIS, J. T. M. Franse, for plaintiff in error. J. C. Crawford, contra. RYAN, C. On the 25th day of July, 1890, Swan Olson filed his petition in the office of the clerk of the district court of Cuming county, Nebraska, in which he alleged that under an agreement between the plaintiff and defendant that plaintiff had cared for 400 steers for the defendant at the agreed price of $1.50 per head, and that by reason of said services the defendant was indebted to plaintiff in the sum of $600, with interest from May 1, 1890. On September 13, 1890, as shown by the record, the defendant answered, admitting the making of the contract sued upon, and that thereunder the defendant had delivered to the plaintiff 400 head of steers to be cared for by the terms of said agreement, and admitted that on the 5th day of May, 1890, the plaintiff took 374 of the said cattle to the place of delivery agreed upon in said agreement. For a cause of action in favor of defendant against the plaintiff, the defendant alleged that the plaintiff agreed to keep, feed, and care for the cattle during the time agreed upon, and that the plaintiff would be responsible for all cattle lost through his negligence; that on the 27th day of March, 1890, while said cattle were under the care of plaintiff, he, in plain violation of his agreement, carelessly and negligently allowed a large number of said cattle to be driven by a storm into the Logan river near plaintiff's premises, by reason of which negligence twenty-six of said steers were drowned, |