41 Neb. 93 | Neb. | 1894
In this action as originally brought in the district court of Thayer county Joel T. Albright was plaintiff and Richard Ellison was defendant. Except where otherwise expressly noted the same designation will be applied to the respective parties. In his petition plaintiff Albright alleged
In the brief filed on behalf of the defendant in error Albright his counsel summarized the facts constituting plaintiff’s cause of action in this language: “Albright sold and conveyed the land before described to Ellison for $6,400, which fact is admitted by all. That Albright received $1,600 and $1,200 (being the mortgage on the quarter in section 28, and one-half of the mortgage on the quarter in section 34, with other lands, with some accrued interest) and the further sum of $1,021 (or $1,023) there is no dispute. Allow us to say the mortgages assumed, with accrued interest, and the cash paid, left only $2,470 of the purchase price of the land, to-wit, $6,400. It was this balance of the purchase money for which suit was commenced.” This concise statement of the matters in issue, limiting as it does the inquiry to the item of $2,470, will be accepted as correct, for thereby, without prejudice to the rights of either party, is avoided a tedious recitation of the matters presented by the answer and reply. To an understanding of the matters involved it will be necessary to explain the transactions which gave rise to the alleged indebtedness for the sum last mentioned. For this purpose the evidence on this point of Mr. Albright, summarized, was as follows: On February 19, 1886, Albright sold the southwest quarter of section 28 and the northeast quarter of section 34, town 4, range 1 west, 6th P. M., situate in Thayer county, to Richard Ellison for $6,400. On one of these quarter sections there was a mortgage of $2,400,
• The foregoing statement, as indicated, is compiled from ’ the testimony of Albright, and is given that his version of the affair may appear. It is not to be understood, however, that by this court any attempt has been made to weigh the testimony or settle controverted fact propositions, for no such effort has been made. As was said in the brief for defendant in error, this suit was brought to recover the $2,470 item, to which reference has already frequently been made. It can scarcely escape observation that the defendant in error went into possession of the stock of goods which this $2,470 represented; subsequently such possession was resumed by Brown, and that thereby there was necessitated a suit on the part .of Albright to regain his lost possession. Concededly, the only circumstance which could justify Brown’s resumption of possession was that Ellison had failed to pay him the balance of $418, or, as Brown figures it, $425, due him from Ellison. Even as to this Brown’s testimony was that after his own resumption of possession Ellison tendered this balance to him, which he refused to receive, and refused to deliver up the stock of -goods unless he was also paid for the trouble and expense he had been put to. Under these circumstances this action was brought by. Albright for the recovery of the $2,470. In his testimony Mr. Albright said that he replevied the stock on the suggestion of Ellison that he should do'so, and that he, Ellison, would sign his replevin undertaking to en
There was a judgment in the replevin suit, which was afterwards affirmed in this court. The cause was then remanded to the district court. The theory of the defendant in error in the trial of this case was, that Ellison was liable for the amount paid by the defendant in error for the satisfaction of the judgment in the replevin action. For the purpose of showing this payment there was introduced in evidence a page of the judgment docket No. 1 of the district court, on which there appeared the name of Joel T. Albright as judgment debtor, and the names of the parties to the suit, the kind of action, the date of judgment, April 21, 1886, the page of the journal, and the amount of the judgment, $2,421. The matters described were followed by this writing:
“August 14, 1889.
“Received of Joel T. Albright full satisfaction and payment of this judgment, interest, and costs, and the same is hereby satisfied .and discharged in full.
“J. L. Brown,
“Clara A. Brown, .“James Lockwood,
“Defendants, “By W. O. Hambel,
“ Their Attorney.”
There was no evidence of the alleged payment other than above given. Indeed, on May 20, 1889, there was in said replevin action returned an execution nulla bona.
Reversed.