Einot, Inc. v. Einot Sales Co.

51 N.W.2d 791 (1952)

155 Neb. 323

EINOT, Inc. v. EINOT SALES CO., Inc.

No. 33004.

Supreme Court of Nebraska.

February 15, 1952.

Richards, Yost & Schafersman, Fremont, for appellant.

Sidner, Lee & Gunderson and Spear, Lamme & Flory, all of Fremont, for appellee.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

YEAGER, Justice.

By motion for rehearing, among other contentions, the appellee contends substantially that this court was in error in that portion of the opinion wherein it is stated: "On January 3, 1951, attorneys for plaintiff received for and on behalf of plaintiff the $1,017.70 which had been paid into court for the benefit of plaintiff." [49 N.W.2d 627]

The basis of the contention is that this information is not legally authentically before the court, it not appearing in the bill of exceptions. The contention is a valid one and will be so recognized and the statement withdrawn. It will be pointed out however that in the original brief of appellant the subject was presented as authentically appearing and the appellee made no resistance thereto on the ground of lack of authenticity. The matter of receipt of the amount by the attorneys was not even responded to by attorneys for appellee.

The deletion of this sentence however does not affect the decision nor the remainder of the opinion. The record, as pointed out in the opinion, discloses that after declaration of and action for forfeiture the appellee accepted or at least retained certified checks for subsequent payments coming due under the contract. As pointed out in the former opinion this amounted to a waiver of the right of appellee to forfeit the contract.

With the deletion mentioned the motion for rehearing is overruled and the original opinion adhered to.

Rehearing denied and original opinion adhered to.