59 Neb. 44 | Neb. | 1899
Charles F. Yates, who during a portion of the year 1889 was engaged in mercantile business in Chadron under the name and style of Yates & Co., ordered and received from the defendant, a wholesale dealer in dry goods and notions at St. Joseph, Missouri, certain articles of merchandise for retail trade in his store at Ohadron. Yates executed and delivered to the plaintiff in error, the bank, one or more chattel mortgages on his stock of goods, and on June 14, 1889, at which time he failed in business, possession of the stock in the store was taken by the bank under its mortgage. The defendant in error commenced-this action to obtain possession of the stock of goods, alleging that the sales to Yates had been induced by his false and fraudulent representations in regard to his financial condition, and that on ascertainment of the falsity of said representations the sales .of the goods had been rescinded. A trial of the issues in the district court of Dawes county resulted in a judgment in favor of the'bank, which, on error to this court, was reversed and the cause remanded. A rehearing was granted in this court, and on re-examination the decision at the former hearing- was approved and followed. The opinion rendered on the first submission of the cause is reported in 34 Nebr., 863, and the one on rehearing in 42 Nebr., 237. After the return of the case to the district court a second trial occurred, as a result of which the defendant in error was accorded a judgment and the bank has prosecuted this error proceeding to this court. .For a more extended statement of tlie case we refer to the opinion in 34 Nebr., 863. The second trial in the district court was without a jury.
It is undisputed that an action -was commenced on the account of charges for the merchandise sold to Yates, the issuance of a writ of attachment was procured therein, and the bank, plaintiff! in error herein, was served with a writ of garnishment. One member of the firm, now defendant in error, was interrogated relative to the suit and attachment and answered as follows: “Q. State what, if anything, you know about an attachment brought in the name of plaintiffs against Yates & Oo. of Chadron, Neb. A. I have no knowledge of any such attachment being brought. We never authorized the bringing of any attachment suit, and never ratified such attachment suit. I ordered a replevin suit for whatever goods
“St. Joseph, Mo., June 14, 1889.
“Mess. F. M. Dwrington & Sons, Attys., Chadron, Neb.— Dear Sirs: We are just in receipt of your telegram saying that Yates was in debt $20,000, and had stock $10,000 under chattel mortgage for $12,000 to bank, and that you had garnished bank for us, which is a step in the right direction. We think you should keep on the aggressive and you may yet make our full account. We will send itemized sworn account by next mail, but you need not wait for it. We here send statement made by Yates to us before we shipped his goods. We think with this statement you can jail him for obtaining goods under false pretenses. Do not hesitate to do so if you think the laws will bear you out in it.
“Yours truly, Tootle, Hosea & Co.”
There are some other questions discussed, but their examination and decision at this time are not necessary to a disposition of the cause, and we will not further notice them. The judgment is reversed and the cause remanded.
Reversed and remanded.-