Omaha daily bee. (Omaha [Neb.]) 187?-1922, 1906-05-19

that the goods rendered met the require
ments of the contract is upon the plaintiff.
4. Where the goods rendered do not meet
such requirements the vendee may refuse
to accept them, and is not required TO as
sign any ground for his refusal.
D. Where a party pleads and relies upon
an estoppel the burden of proof is upon
him to establish the facts upon which the
estoppel is based.
6. In an action for breach OF contract OF
sale for refusal on the part of vendee to
accept the goods, where the vendor pro
cures the goods from third parties, the
measure of damages is the difference he
tween the cost at wnlc1 pga;ntiff could have
procured and delivered the goods at the
time and place specified by the contract
and the contract price, with interest from
the date of the accrual of the action. Wit
tenberg against Mollyneaux, 80 Neb., 208,
denying the right to interest for breach OF
T. In such cases the computation must be
based upon data furnished by the plead
ings and the evidence, and II they fail to
furnish said data, no recovery can be had,
beyond nominal damages.
14514 I>oar against State. Error, Gar
field. Affirmed. Sedgwick, C. j.
l. In trial for statutory rape, admis-
sion by the defendant showing that he
planned and procured an opportunity to
commit the act charged, with evidence of
familiarities between them, furnishes suf-
ticient confederation of the girls positive
testimony to support judgment OF con-
viction
?. Affidavits found in the files of the case
or attached to the transcript cannot be
considered as having been used in support
of a motion for new trial unless they are
included in and shown by the certificate
of the proper officer to be a part of the bill
of exceptions, and to have been actually
used in evidence upon the hearing OF
the motion.
1858 Middlekaunf against Adams. APP
peal, Dawson. Affirmed. Jackson. c. Dl-
vision No. 2
/. Evidence examined and held to sustain
the conclusions OF the trial court.
1887. Dempsey against Stout. Error
Douglas. Affirmed. Sedgwick, G, j.
l. A complaint which alleges that the de-
PENDANT having in his possession, solely
for his own use. as his own property, to-
bacco and a paper commonly known as
cigarette paper, did place certain of said
tobacco within said paper and did proceed
TO roll the same into form as a cigarette
solely FOL his own use" does not charge
the manufacture" of cigarettes within
the meaning of the statute.
1890. State ex rel Bishop against Dunn
Appeal, Lancaster. Reversed; writ de-
MED; case dismissed. Barnes, ].
/. Statutes in pari materia should be
construed together and their provisions
harmonized, II possible, and where the
conflict between them relates to an imma-
which an officer shall be designated. such
| discrepancies will be disregarded by the
courts.
?. The city council of a city Of the first
class as legislative body has the power
by ordinance 10 establish and adopt suit
able rules for its own government In mat
ters or procedure, and such rules, when
adopted, viii not be set aside by the
courts unless they are directly or by neces-
sary Implication In conflict with some pro-
| vision Of the statutes.
3. Mandamus will not lie to compel the