The opinion of the court was delivered by
In our original opinion we held the district court erred in setting aside special question No. 2 and the jury’s answer thereto and reversed the judgment entered upon the general verdict in favor of the plaintiff, and ordered that the defendant be granted a new trial. The defendant filed á petition for rehearing and the cause was reargued upon the sole question whether this court should enter judgment for the defendant.
We will not again set forth the pleadings of the parties nor summarize the evidence except to say that as a result of the pleadings
The defendant argues that special questions Nos. 1 and 2 and their answers were not inconsistent with each other and that since the principal issue in the lawsuit was contained in special question No. 2, that is, whether the defendant agreed to “make good” any bad checks received during the auction sale, which was in effect answered by the jury in favor of the defendant, this court should order judgment in his favor notwithstanding that the general verdict was in favor of the plaintiff.
It is unnecessary to make an extended discussion of the appellant’s contention. It is sufficient to say that a majority of the court is convinced that our original opinion is correct and that the state of this record requires the granting of a new trial. The original decision of December 12, 1959, reversing the district court and granting the defendant a new trial is adhered to.