Union Stock Yards National Bank v. Board of Commissioners of Thurston County, 65 Neb., 410, 92 N. W. Rep., 1022. 639 CASES ARGUED AND DETERMINED IN THE SUPREME COURT OF NEBRASKA. JANUARY TERM, A. D. 1903. 96-653 FILED JANUARY 8, 1903. No. 12,431. Commissioner's opinion. Department No. 2. 1. Contracts: BREACH: DAMAGES: DEFENSE: APPEAL AND ERROR. In April 10, 1903, the commission was reorganized as follows: Pending on second motion for rehearing. See post, page 910. Parkins v. Missouri P. R. Co. the verdict of a jury will not be set aside unless it is unsupported by the evidence and is clearly wrong. 2. Trial: INSTRUCTIONS: PLEADINGS COPIED INTO: APPEAL AND ERROR. In instructing juries, the practice of copying the pleadings in order to state the issues to be determined is not to be commended. It might confuse the jury, where the issues are numerous and the pleadings complicated; but unless we can fairly say that such was the result a verdict will not be set aside for instructing in that manner. 3. Trial: INSTRUCTIONS: ESTOPPEL TO COMPLAIN. One cannot complain because an instruction is too general in its nature, unless he has requested the court to give one which is more explicit and the same has been refused. Carter White Lead Co. v. Kinlin, 47 Neb., 409; Barr v. City of Omaha, 42 Neb., 341. 4. Trial: INSTRUCTIONS: ESTOPPEL TO COMPLAIN. A party cannot complain of an instruction for stating an issue therein which w properly made by the pleadings, and which was accepted and tried without objection on his part. 5. Contracts: BREACH: TRIAL: INSTRUCTIONS APPROVED. Instructions examined, and held that they were properly given and fairly submitted the case to the jury. 6. Appeal and Error: AsSIGNMENTS: EVIDENCE. Assignments of error on account of receiving and rejecting evidence, although too general to require consideration, examined, and held not to contain reversible error. 7. Trial: MISCONDUCT: OF JUROR: KNOWN TO PARTY: DISCLOSURE: ESTOPPEL TO COMPLAIN. A party having knowledge of facts, during the trial of a cause, which he claims constitute misconduct on the part of a juror, must make the same known to the court at once, and have the matter promptly disposed of. This he must do as a matter of good faith, and he will not be permitted to withhold such knowledge from the court during the trial, allow the case to be submitted to a jury and thus speculate upon the verdict. By such conduct he will be held to have waived his right to a new trial on that ground, unless he satisfy the court that the juror, as a matter of fact, was prejudiced against him thereby, and could not render a fair and impartial verdict in the case. ERROR from the district court for Sarpy county. Tried below before SLABAUGH, J. Affirmed. F. T. Ransom and Weaver & Giller, for plaintiff in error. H. C. Lefler, John F. Stout, James W. Orr and B. P. Waggener, contra. Parkins v. Missouri P. R. Co. BARNES, C. The plaintiff commenced this action in the district court for Sarpy county, to recover damages for a breach of the following contract, to wit: "This agreement made this 5th day of October, 1892, by and between the Missouri Pacific Railway Company, party of the first part, and Joseph F. Parkins, lessee of the Springfield Gravel Company, party of the second part, witnesseth: "That the said party of the second part agrees to deliver to the party of the first part in such amounts as may be designated from time to time by said party of the first part, fifty thousand yards cubic measure of good, clean, marketable gravel, such as shall be in the judgment of the superintendent of the said party of the first part suitable for ballasting the road-bed of said party of the first part, to be delivered on board cars and measured on the cars by the party appointed by said Missouri Pacific Railway Company to receive the same, the said gravel to be delivered within two years from this date, but the times and amount of delivery of gravel within such period to be determined by the party of the first part as it shall need the same from time to time. In consideration of the premises, the said party of the first part agrees to pay for said gravel forty-five cents per cubic yard, delivered on the cars as aforesaid, during the preceding month. "In witness whereof the parties hereunto have set their hands this 5th day of October, 1892." He alleged in his petition that he delivered 20,000 yards of gravel, such as was mentioned in the contract, to the defendant in car-load lots from time to time, and that in the fall of 1894 an agreement was made between them that the time for completion of the contract should be extended for one year from October 5, 1894, which would fix the time of its expiration on the 5th day of October, 1895; that he was at all times ready and willing to deliver the balance of the gravel mentioned in the contract, to |