Eiseley v. Malchow

9 Neb. 174 | Neb. | 1879

Lake, J.

The objection that the evidence is insufficient to support the verdict cannot be sustained. There is really no substantial conflict of testimony, and it shows very clearly, we think, that before the levy of the execution upon it as the property of Levi Baker, to satisfy his individual debt, the machine had been sold by him and his brother Andrew, who owned it in company, to the defendant in error, in part payment of an “indebtedness which they had contracted some months before in the purchase of this identical machine. This fact, too, is practically conceded, as the testimony of the witnesses Reynolds and Andrew Baker is really uncontradicted-, and which is to the effect that immediately after the sale to the defendant Malchow, and long before the levy was made, the' plaintiffs were fully informed of what had been , done, and that Malchow was the owner of the machine.

As to the ninth section of our statute of frauds, which is substantially the same as the seventeenth section of the English statute, we do not see that it can have any influence in the decision of the case. Even conceding that this section of the statute might have b,een invoked at the proper time, as between these parties, it was not done. That time was upon the offer of ordinary parol testimony to prove the sale from the Bakers to Malchow. But no objection to the mode of proof being then made, it is too late afterward to make it. The object of this statute is not to avoid sales of property satisfactory to the parties making them, although made without complying with its formalities, but it is merely to enable parties to such contracts, in ease of dispute and litigation, to insist upon certain specified modes of proof in order to enforce them.

It is also alleged for error that the court overruled the objectioú for incompetency to the thirtieth question in the deposition of Andrew Baker, which was as follows : “ At the time the machine was sold by you and your brother to Malchow, was it not the understanding between you and your brother that the title to the machine was passed to Malchow; and what you did about it afterwards you so done for Malchow as his agent?” This question was certainly very leading, but no obj ection was made to it on that ground. And it was also incompetent. It was not proper, in a controversy between these parties, one of them a stranger to the contract, for him to give either his brother’s or his own understanding of the legal' effect of what was done at the time of the alleged sale. As against the witness himself it might have been proper. And did we not clearly see that his answer could not possibly have prejudiced the- plaintiffs in error, it would have called for a reversal of the judgment. But the answer given by the witness was really no enlargement of the field of proof, for the fact of the Bakers’ intention to transfer all their interest in the machine to Malchow, and that they did so, had already been proved beyond the reach of doubt, even by an abundance of other competent evidence. In such cases the error, being clearly without prejudice, is not a ground for a new trial.

As to the two instructions complained of we see nothing really objectionable in them, save perhaps that they were not really called for by the state of the proofs. They stated the law correctly, so far as they had any application to the facts before the jury.

But a single question remains, and that concerns the verdict, which was in these words: “We, the jury duly impaneled and sworn to well and truly try the issues joined between the parties in this case, do find the property of the machine in question to be in the plaintiff, and do assess his damages at one hundred and nine dollars.”

This verdict is technically deficient in not expressing, either generally or specifically, .the finding of the jury upon the question of the alleged unlawful detention of the property. Ordinarily this is done in general' terms, as for example: “ "We find the issues in favor of the plaintiff.” But although this omission is a defect, nominally, under the circumstances of this case it could have occasioned no harm. The merits of the entire controversy hinged on the question of ownership, upon which the jury expressly passed. No question concerning the detention of the property, uncontrolled by that of ownership, was raised. That the defendants' below wrongfully detained the machine, if Malchow owned if, was clear and undisputed. Therefore, the jury, having found that Malchow was the owner, this entitled him to a judgment for its value at least.

No material error having been pointed out, the judgment must be affirmed.

Judgment aeeirmed.