84 Neb. 624 | Neb. | 1909
Action for alleged conversion of plaintiff’s money. Plaintiff prevailed, and defendants appeal.
In March, 1905, plaintiff resided in Lawrence, Kansas, and owned a farm near Alma, Nebraska, extending across the state line into Kansas. About 1903 he authorized defendants Porter & Griffen, who are in the real estate business in Alma, to sell said land. March 22, 1905, Porter & Griffen telegraphed and telephoned plaintiff that they had sold his land subject to his approval for $40 an acre. Plaintiff wired his acceptance of the sale, and went to Alma, arriving there in the forenoon of the 25th. Plaintiff had also listed his land for sale with Gaumer & Harbaugh, real estate agents residing in Woodruff, Kansas, ten miles distant from Alma. Before closing the deal through Porter & Griffen, plaintiff talked with Mr. Harbaugh, who claimed that his firm, and not said defendants, had made the sale, and thereafter, after again talking with the Alma men, plaintiff entered into a contract with the purchaser and received $2,800 cash. Plaintiff then went to the place of business of defendant Bank of Alma and deposited a deed to the purchaser for said land and the contract between himself and the vendee, and instructed said bank to deliver the deed to Willey, the purchaser, whenever the remaining cash payment was made and Willey’s notes secured by a mortgage on said farm for $10,000 were delivered to it for plaintiff. The bank was then to pay $400 to Porter and pay for an abstract and for recording the mortgage. The instructions were reduced to writing by the president of the bank, but not signed by plaintiff. On the 27th day of March Gaumer & Harbaugh commenced an action in the county court of Harlan county against plaintiff for $450 commission for selling said farm, and garnished the bank. At that time the bank did not have any of plaintiff’s property in its possession, nor was it indebted to him. Thereafter Wil
We have not been cited to any authority holding that the service of summons on the garnishee in a suit against a solvent defendant will annul and set aside a bona fide assignment theretofore made by him, where the debt of the garnishee exceeds several times the combined amount of said assignment and the claim of the attaching creditor. Plaintiff could have protected himself if he had acted judiciously, and his failure to countermand his instructions to the bank or to interplead the rival claimants for commission will not justify a judgment in his favor against his former debtor or bailee. Plaintiff argues that the instructions given in the district court ought not to be considered because the assignments of error filed in this court in regard thereto are joint. The motion for a new trial conformed to the rule, and, under the practice established by the laws of 1907, ch. 162, the assignments of error discussed in the printed brief will be considered. First Nat. Bank v. Adams, 82 Neb. 801.
Plaintiff cites Missouri P. R. Co. v. Twiss, 35 Neb. 267, but we there held that, if a defendant is sued for a wrong committed by a third person, and the party responsible has knowledge of the suit, and appears as a witness therein, he will be liable over to defendant; and that connecting common carriers are agents for one another for the carriage of goods accepted by one carrier to be delivered by them at a point beyond the limits of the initial carrier’s railway. In the instant case the attachment suit was not prosecuted in the interest of Porter & Griffen, nor because of their misconduct, but to recover a demand which plaintiffs therein made against Cockins. In Burns v. Gavin, 118 Ind. 320, cited by plaintiff, the purchaser from an assignee of a bankrupt estate had induced the county treasurer to bring a suit against said assignee to compel him to pay from the assets of the estate in his hands certain taxes theretofore levied on the property sold to said vendee, and had employed counsel for the treasurer. The treasurer was defeated, and plaintiff, after paying the taxes himself, brought a suit against the assignee, and it was held that, as he had instigated and actually controlled the suit brought by the treasurer, he was bound by the judgment therein. In Roby v. Eggers, 130 Ind. 415, also cited by counsel, the party held to be estopped had instigated and controlled the former litigation. Those cases, and others cited by plaintiff upon this phase of the case, are not in point. It is doubtful
The judgment of the district court therefore is reversed, with directions to dismiss the petition as to the defendant Bank of Alma, and for further proceedings as to the other defendants.
Reversed.