21 Neb. 511 | Neb. | 1887
The plaintiff filed his petition in the court below, stating his cause of auction to be: “ That on the 11th day of March,
“4th Paragraph. And for a further cause of action, plaintiff alleges that during and immediately after the
The plaintiffs exhibit “A” is as follows:
“Filley, Neb., March 11th, 1884.
“Eeceived of Elijah Filley $1,000, as part pay on forty-two head of fat steers that I am now feeding, and which I am to feed from the first to the fifteenth of May next. Said cattle to be driven from feed lot on day of delivery, and stand one hour, and then weighed at Filley, and shrunk three per cent, for which Filley agrees to pay $5.35 per hundred pounds. Also one hundred head of choice hogs I am now feeding — now with the cattle — which I am to ■deliver at the town of Filley, for which I am to have six cents per pound, to be delivered from first to fifteenth of May. Should Filley advance any more money, Billings to pay ten per cent for it.
“ [Signed.]
Wilburn X Billings. Mark. Elijah Filley.”
The defendant in his answer admits the making of the contract, and alleges that in pursuance thereof forty-two head of steers, and One hundred and four hogs, were delivered by the plaintiff to defendant, and that he has paid plaintiff for the same in full.
On the trial of the cause a verdict and judgment were rendered in favor of the defendant.
The plaintiff testified: “April 22d, defendant wanted the stock delivered next day. I delivered next day forty-two steers, and one hundred hogs. Eilley weighed the stock. I could not read the writing. I was dissatisfied with the weight of the steers. There was a plank off the side, about as high as a steer’s head. Alva Lamb stood there. "When he punched the steers back to the other end of the scales I saw the beam run up. I said: ‘Eilley, your scales are not right.’ He said, ‘Ah! it’s the wind.’ I said: ‘The wind don’t make two or three thousand pounds difference in the scales.’ Every time the cattle crowded to the south side the beam would go up. I remarked this several times to him. He said he knew they were right because he sold on them. I told him: ‘ They are not right, and I think you know it.’ Weighed a bull after steers. I knew scales were not right from weight of bull, but could not get Filley to examine them. He stuck to it that they were right, and I was not a judge of scales. We then weighed the hogs. That evening I sold Eilley twenty other fat hogs, nineteen at five" cents per pound, and one for $20, and took them up next day. Alva Lamb, Miller, and Bill Grady were with me. Eilley was not there when we got there. His weigher, Boughman, weighed first eleven hogs, then drove on the other eight. He weighed them. I asked him to weigh them on south end of scales. There they weighed two hundred fifty-five pounds more than on north end. This was on same scales the cattle and hogs were weighed the day before. Mr. Eilley then came down. I told him there was something wrong with his scales, and was yesterday, and now I am going to convince you. He said something had got between the sill and the frame, and the scales were all right. I said: ‘Let us find what it is.’ He went to one end of frame and sawed between frame and
“ CKOSS-EXAMINATION.
“I cannot read nor write. I had a man taking the weights. He and Eilley figured together. It was Charley
Q,. 154. Now the agreement was, you say, between you, that you would weigh the stock over again and allow Eilley, or pay him, $25 ?
A. Yes.
Q. 155. And four per cent shrinkage?
A. Yes..
Q,. 156. You wanted him to weigh the hogs, did you?
A. I did. I don’t think there was anything said about the hogs until we' got done weighing the cattle. ‘ I told him I wanted the hogs weighed, that was my contract.’ I wanted him to weigh them. Don’t know that I asked him to weigh them, because I saw it was not worth while, seeing he would cheat me out of them. I did not want them weighed the way he weighed the cattle.
Q. 165. Is it not a fact that after you weighed the cattle you went in and.settled up the whole business?
A. Never settled a thing; he took $50 out of last hogs I took in, and he was to give me $20 for a black sow, and agreeably they only figured nineteen hogs, and the black sow was never figured in.
Defendant objected and asked to- have this answer stricken out.
Overruled. Defendant excepted.
Q,. 176. He did not pay for the black sow and took out $25 and one per cent shrinkage?
A. Yes. Second day Filley did not tell me there was something wrong with scales, that they did not balance. I saw him ‘clean them off with the saw and balance them. Cannot tell how many dollars I got the second day; got what the nineteen hogs came to, is my opinion, besides what they took out in one per cent weighing, and $25 for weighing the cattle over. That is what I lacked of getting
Q. 235. "What was done about the settlement? Did you settle up on those new figures, you, and Brown, and Wininger and Miller?
A. Never had any settlement, only he took so much out of the hogs and I took the balance and went home.
Q. 256. The balance he paid ?
A. The balance all paid, only the steer. He wanted I should take the steer home.
Q,. 257. You agreed to take him?
A. I don’t know whether I did or not. I don’t know whatever became of the black hog. Charles Wininger helped drive steers up Eilley’s; aggregated weight 'first day, forty-two steers, 48,645 pounds. Said hogs'weighed first day, aggregate weight, 14,335.”
John I. Parker testified: “Am a millwright and carpenter. He removed these cattle scales after this stock was weighed. Pound on side the cattle were driven in it Was banked up rvith clay and there was a block under that to support the top of the frame, and that block had pressed against the adjustable frame and caused some friction. That is all I found. The block pressed against the platform. It was under the stationary platform that supports the scales.”
Samuel Cowan testified: “ I’m a carpenter. Parker called my attention to the block he spoke of. He showed me what was the matter with the scales.”
The defendant testified: “ The hogs and cattle vrere delivered April 21,1884. We balanced the scales in the first place. They were correct. I did the balancing. I weighed
Q,. 1,043. Was he included in the figures you paid him?
A. Yes, in this settlement. The next day, right after this settlement, I bought twenty hogs of Billings; one for $20 — it was spotted — the other nineteen was to be $5.50 per hundred. While at dinner, Boughman, the man who weighs for me, came in and told me there was something wrong with the scales; I would have to go up. I went out, took hold of the beam to weigh the hogs, and I saw at once the scales were out of whack — something the matter with them. I weighed the hogs on one end of the scales; they weighed about 1,850 pounds. On the other end they weighed 2,000 and something. Billings was saying they were out of fix the day before, and I had beat him over $1,000 on the stock the day before. I told them to take the eight hogs on the scales — the office scales are
Q. 1,054. What was the reason of giving that shrinkage of one per cent more?
A. That would offset the drive of four miles the day before.
Q,. Anything for feeding?
A. For the x’eason the cattle were filled up.
O,. 1,061. What was said about whether the hogs— what was said about them?
A. The talk was about the cattle principally. He spoke about weighing the hogs over. I said ‘ I will weigh the stock over; you pick out the hogs if you can get into the lot and sort them out, and we will weigh
CROSS-EXAMINATION.
Boughman is a fair weigher and pretty accurate at balancing the scales. If he had weighed a draft of hogs on these scales and they were in the condition I described when I came, I think he would have discovered it; think any man would. We call it four miles the stock was driven. The forty-one we weighed the second day weighed forty-one pounds more than the forty-two. We guessed the one we did not weigh at 1,000 pounds.
Q,. 1,188. By the way, tell us what' became of that steer? Where he is?
A. I don’t know.
Q,. 1,189. What did you do with him?
A. I kept him there in the lot waiting for Billings to take him away.
A. I think not.
Q,. 1,191. What did you do with him, Elijah?
A. I didn’t do anything with him.
Q. 1,192. Haven’t you sold him or sent him away to market, shipped him to market ?
A. I told some parties there was a steer there that was not mine, and I did not care what became of hini. I sold the forty-one steers to Wagner, of Chicago. I said to Billings on the 19 th of May, ‘You were going to take him away?’ He said he wouldn’t do it; said, ‘You have bought the steer, you will keep him.’ He went home without him. I says to the Chicago party, ‘ Go look at that steer, and if he i$ of any account you take him along;’ and he went up and looked at the steer, and I think shipped him with his cattle.
Q,. 1,213. You told Billings this 'would disturb the cattle a good deal to get them up and weigh them again, didn’t you?
A. Yes. Here he is asked to explain, and testified: ‘I don’t think they would lose in weight so much, but it would be a damage to the cattle.’
Q. 1,216. They would lose in flesh?
A. Yes, in one sense of the word, I-think they would.
Q,. 1,221. Wear off $25 worth of flesh to drive them ten or fifteen rods on the scales and back again?
A. Think ten pounds, eight or ten pounds off from a steer.
Q. 1,222. You told Billings you would weigh them over if he would pay you $25 ?
A. I told him it would be worth $25 to weigh them over.
Q. 1,223. And then he must shrink them how much?
A. One per cent additional.
Q,. 1,225. You were satisfied your scales were wrong?
Q,. 1,226. But you would not weigh them over unless he allowed you $25 and shrunk them four per cent?
A. As soon as I made the proposition he took me up. I had paid him for the stock the day before, and had the stock in my hands. I think Wilks Gale bought hogs with me, you might say.
Q,. 1,271. Do you remember about telling him about five years ago, and while engaged in business, that you could not make money in the business and give honest and good weights?
Objected to as immaterial, irrelevant, incompetent and too remote.
Sustained. Exception noted.
Q. Did you offer Billings $225 to settle, after you discovered this difficulty?
A. I think not. I have heard the witnesses testify to that. I think they are mistaken.”
There is considerable other testimony in corroboration of the plaintiff to which it is unnecessary to refer. It will be observed that the defendant does not deny the essential facts testified to by the plaintiff, that the scales would not weigh correctly; in fact he corroborates the plaintiff’s testimony that the scales were incorrect, that forty-one steers weighed more on the office scales than forty-two had done the day before on the other scales; he also corroborates the plaintiff that he agreed to pay the defendant $25 to reweigh the stock delivered the day previous, and that he refused to reweigh the hogs. His excuse is that the plaintiff expressed himself as satisfied with the weights the day before, and therefore stated that he did not desire to have the hogs reweighed; this statement is not very probable when we consider that the actual weight of the cattle was considerable more than the weights as given the day previous. A clear preponderance of the testimony tends to show that the scales, on which the forty-two head of cattle and the
The defendant was to pay the plaintiff $5.35 per hundred for the steers, and six dollars per hundred for the hogs. These prices were for the actual weight of the stock so delivered, and when it was found that the scales were incorrect the plaintiff was entitled to have the stock weighed correctly, and this without payment of any consideration. Until the stock had been weighed correctly it had not, so far as the rights of the seller were concerned, been weighed — that is, the fraudulent or incorrect weighing of the stock was not a weighing within the meaning of the contract. The $25, therefore, which the plaintiff agreed tó pay the defendant was a mere gratuitous promise, and for which he received no consideration.
2. Even had the promise been supported by a sufficient consideration, still unless the plaintiff waived the reweighing of the hogs the defendant failed to perform his° part, and therefore is not entitled to recover.
3. As to the forty-second steer .the defendant testifies: “I says to the Chicago party, ‘Go look at that steer, and if he is of any account take him along,’ and he went up and looked at the steer, and I think shipped him with his cattle.”
This will make him liable for the value of the steer. This steer he purchased with the others, and received him the day the cattle were delivered, but on the second day, when the cattle were reweighed, he attempted to throw him back on the plaintiff. The steer, however, was left in the defendant’s possession, and by him turned over to the parties who purchased the other steers, whether by gift or sale is immaterial to the plaintiff. The assumption of ownership
4. A large number of instructions were given in the case to which no exceptions were taken, therefore they cannot be reviewed by this court. Tbe judgment of the district court is reversed, and tbe cause remanded for further proceedings.
Reversed and remanded.