59 Neb. 305 | Neb. | 1899
This action was brought by George A. Latimer against Samuel S., John L. and Frederick Beebe, on the theory that the defendants had converted to their own use certain' property npon which the plaintiff had a contract lien coupled with possession. The district court tried ■the cause without a jury, found the issues in favor of the plaintiff, and rendered judgment accordingly.
Briefly stated, the events out of which the litigation arose are as follows: Frederick Beebe was the owner of a stock of merchandise in the city of Norfolk, and Mrs. O. M. Jones was the owner of some real estate and other property. Mr. J. J. Jones, acting under a limited agency from his wife, agreed to trade her property for Beebe’s stock of goods. In pursuance of this agreement possession of the store and stock was surrendered to Mr. Jones, who immediately turned over to Beebe a deed for the Omaha realty, together with the other property covered by the contract. By the terms of the contract it was further provided that Mrs. Jones should execute to Beebe her promissory notes for the difference between the agreed value of her property and the invoice value of the goods. This agreement Mrs. Jones refused to perform and repudiated at once the entire transaction on the ground that it was not within the limits of her husband’s authority. Beebe declining to accept a return of the goods, and, refusing to reconvey the Omaha real estate, an action was commenced in the district court of
It is quite evident that the validity of Latimer’s lien depended on the title of Mrs. Jones. If she had no title, then, of course, he had no lien. The record shows that Jones had authority to make an exchange of his wife’s property for Beebe’s stock of goods. It also shows that his authority was limited; but there is nothing to indicate that the special limitation, which related to the value of the goods, was known to Beebe., It also appears that Mr. Jones was in possession of the store for several days; that he sold goods in the usual course of business and received the proceeds of the sales. It is not disclosed that the money so received was tendered back at the time of the alleged rescission of the trade, or at any other time. There is evidence to the effect that Beebe was, during a considerable period, holding fast to the property received from Jones, and in other respects conducting himself as though he regarded Mrs. Jones as the
It is claimed that the petition does not state a cause of action against all the defendants, and that the judgment is, therefore, erroneous. We think the pleadings, construed together, disclose an alleged joint liability; but if we are wrong upon this point, still the judgment is not for that reason subject to reversal, as the parties all joined in the motion for a new trial. A motion which can not be sustained in the form in which it is presented is properly overruled. See Knight v. Darby, 55 Nebr., 16; Cortelyou v. McCarthy, 53 Nebr., 479; Minick v. Huff, 41 Nebr., 516; Gordon v. Little, 41 Nebr., 250. If the plaintiff shall, within thirty days from this date, remit from the
Affirmed conditionally.