94 Neb. 655 | Neb. | 1913
This is an action in replevin, instituted in the county court of Butler county, by plaintiff against the defendant for the possession of an upright Brewster piano, which was alleged to have been wrongfully detained by defendant, plaintiff claiming the ownership and the right to the possession thereof. Defendant answered, admitting that plaintiff was the owner of the piano at the time of the commencement of the’ suit and was entitled to the possession thereof, but alleging that no demand had been made for the property prior to the commencement of the suit. In addition to a genera! denial, he pleaded a “counterclaim set-off,” alleging, in substance, that an agent of plaintiff took the piano to the home of defendant, stating
It is to be regretted that more careful attention has not been given to the provisions of the code governing suits in replevin, and to the rules of pleading in such actions as established by a long series of decisions by this court. It is difficult to see how the admission that plaintiff was the owner and entitled to the possession of the property in dispute at the time of the commencement of the action can be Avell harmonized with the general denial pleaded in the same answer. The gist of the action is the right to the possession of the property. If plaintiff was the owner and entitled to the possession thereof, as admitted in the answer, it was entitled to judgment without further proof. If defendant had a lien on the piano for the storage, plaintiff was not entitled to possession, and a general
The evidence is conclusive that plaintiff has at all times been the owner of the property. The only question is as to defendant’s lien for storage and care., There was evidence tending to prove that at or about the expiration of the two weeks defendant notified plaintiff that the piano would have to be removed or storage would be charged. It was not removed for many months thereafter. While it may be that the jury were somewhat liberal in their verdict, we cannot say it was so excessive as to call for a reversal of the judgment or require a remittitur.
The court instructed the jury, in substance, that before plaintiff could recover he must prove a demand for the property before the commencement of the action. This instruction was excepted to, and is now assigned for error. As there was ample proof of demand, the instruction could work no prejudice, even if wrong. It was in accord with the theory upon which plaintiff tried the case. Plaintiff cannot noAv complain.
Finding no error requiring a reversal of the judgment, it is
Affirmed.