dissenting.
I am unable to concur in the foregoing opinion, for the following reasons:
When this case was before us the first time we affirmed the judgment of the trial court, 4 Neb. (Unof.) 1. Our second opinion, written by Mr. Commissioner Hastings, reverses the judgment of that court, 4 Neb. (Unof.) 13, and the majority now adhere to that opinion on the same ground and for the same reason set forth therein, to wit: that,the court erred in giving instruction No. 5, because it required the plaintiff to prove more than was necessary to entitle him to recover. The pleadings are fairly set forth, in substance, in our first opinion, and no fault is found with, or criticisms passed upon, the facts or issues as stated therein; therefore, no further statement of the case will be made in this dissenting opinion. It is sufficient to say that the petition set forth the contract; alleged the breach of it by the defendant; stated that the plaintiff was at all times ready and willing to perform his part thereof; set forth the amount of his damages, and prayed for a judgment therefor.
The answer admitted the making of the contract, and the plaintiff’s part performance; admitted that defendant refused to receive any more gravel thereunder; and affirmatively alleged as a reason for its refusal and as a defense to the plaintiff’s petition that the gravel furnished by him was, in the judgment of the defendant’s superintendent, unfit and unsuitable for ballasting purposes, and was, in fact, unfit therefor; that the defendant, during the life of the contract, notified the plaintiff of that fact, and thus terminated it according to its terms. The plaintiff by his reply alleged affirmatively that the gravel was, in fact, and in the judgment of the defendant’s superintendent, fit and *835suitable for ballasting purposes; that it was the kind of gravel contracted for; that the defendant had received 21,816 cubic yards thereof, as stated in the petition, and had used the same for ballasting its roadbed, and that the defendant, without reason, arbitrarily refused to receive the balance of the gravel contracted for by the agreement in question, after the expiration of the contract, for the purpose of avoiding and escaping its liability under said contract. The formal denials contained in the reply were rendered nugatory by these averments, because this new matter was inconsistent with such denials. This rule of construction is the one Avhich should be applied to the reply, for it accords Avith the rule adopted by all of the courts in this country.. In State v. Sill, 47 Neb. 456, it Avas held:
“Where the petition alleges the delivery of the official bond declared on, the allegations in the ansAver of a surety — folloAving an averment therein that he signed upon condition the principal should also sign — that ‘if it (the bond) Avas ever delivered, it was done in violation of the express condition aforesaid upon Avhich the defendant signed said instrument/ must be treated as a substantial admission of the delivery of the bond.”
When the plaintiff: alleged in his reply that the gravel in question Avas suitable, in fact, and in the judgment of the defendant’s superintendent, for ballasting purposes, and that the defendant, acting Avithout reason and arbitrarily, and for the purpose of avoiding and escaping its liability under the contract, refused to receive the balance of the gravel contracted for, he clearly admitted the allegations of the defendant’s answer as to notice and the termination of the contract, and assumed the burden of proving affirmatively that the gravel in question was, in fact, and in the judgment of the defendant’s superintendent, suitable for ballasting purposes; that the defendant’s refusal to receive it was arbitrary, and made for the sole purpose of avoiding its liability under the contract. That this was the legal effect of the plaintiff’s reply seems be*836yond question. Ketelman v. Chicago Brush Co., 65 Neb. 429; Dinsmore & Co. v. Stimbert, 12 Neb. 433; Home Fire Ins. Co. v. Johansen, 59 Neb. 349; Johnson v. Hesser, 61 Neb. 631. It is unnecessary to cite further authority to support this well settled rule.
The plaintiff, having by his own pleadings assumed the burden of proof as to the matters above stated, introduced no evidence whatever in.support of the allegations contained in his reply; while the defendant’s superintendent testified that in his judgment, and in fact, the gravel was unsuitable for ballasting defendant’s road; that under his orders notice of that fact was given to the plaintiff, as soon as it was possible to determine it, and the contract was thus terminated before its expiration. The plaintiff not only failed to controvert this evidence, but tacitly admitted that numerous conversations had occurred between himself and the defendant’s superintendent about the quality of the gravel; that the question was discussed between them of how to treat it, and what, if anything, they could put with it to render it suitable for 'the defendant’s use. Under the pleadings it would have been proper for the court to have instructed the jury that the, burden of proof was on the plaintiff to, show that the gravel in question was, in fact, and in the judgment of the defendant’s superintendent, fit for its use; and that the defendant’s refusal to take the same was arbitrary and unwarranted by the facts. And yet, by the instruction complained of, the jury were told generally that if they found these facts affirmatively the plaintiff would be entitled to recover. The instruction was general in its terms, and applied to the defendant’s evidence as well as that of the plaintiff. The jury must have understood that it applied to all of the evidence in the case. It fairly covered the issues presented, and in such a way that the plaintiff had no right to complain of its effect. Tn fact it was much more favorable to him than to the defendant. It thus seems clear that my associates have failed to properly analyze the pleadings, and- are mistaken as to the *837real issues presented by them. It is. conceded that the plaintiff was bound to show that the action of the defendant’s superintendent was arbitrary and unwarranted. The only way he could do this was to prove that the gravel in question ivas in fact suitable for the defendant’s use, and was such as was contemplated by the contract. For these reasons, it is apparent that the court did not err in giving the instruction complained of. Again, it seems clear from the record that under the pleadings and the evidence, as contained therein, a judgment for the defendant is the only one that could have properly been rendered. For this reason, if for no other, the instruction did not prejudice the plaintiff’s rights.
For the foregoing reasons, it seems to me that our second opinion should be set aside; that our first opinion should he adhered to, and the judgment of the district court affirmed.