47 Neb. 699 | Neb. | 1896
This was an action in replevin by Palmer, Blanchard & Co., a corporation, against Garber for 300 head of cattle alleged to be worth $8,000, and appraised at $5,000. The answer was a general denial. After each side had rested its case the plaintiff moved the court “to dismiss this action without liability to the defendant herein.” Whereupon the following order was made: “On consideration whereof the court sustains said motion, and it is hereby considered, ordered, and adjudged that said action be, and the same is hereby, dismissed at plaintiff’s costs. And it is further considered and adjudged that said plaint
The evidence discloses that Garber and one Higby, who was cashier of the Farmers & Merchants Banking Company of Red Cloud, made an arrangement with Palmer, Blanchard & Co., who were live stock commission men at South Omaha, whereby the Farmers & Merchants Bank issued a letter of credit in favor of Garber, on the faith of which Garber bought the cattle in controversy in New Mexico, drawing on the bank for the purchase price. The agreement was that the South Omaha National Bank should issue to the Farmers & Merchants Bank a corresponding letter of credit; that Garber should secure advances by Palmer, Blanchard & Co. by chattel mortgage; that the Farmers & Merchants Bank should, in pursuance of its letter of credit, honor Garber’s drafts for the purchase money, and that on the execution of the mortgages, drafts should be drawn, with the mortgages attached, which should be paid by Palmer, Blanchard & Co. The details of the latter part of the agreement were not made clear, nor are they material. It sufficiently appears that through some arrangement
The action taken by the court might have been error without prejudice had the plaintiff beyond contradiction established its right; but it did not do so. In the first place the petition stated no cause of action. It alleged a special ownership in the property without setting out the facts in relation thereto. A plaintiff in replevin claiming under a chattel mortgage must allege a special ownership and plead the facts. (Musser v. King, 40 Neb., 892; Randall v. Persons, 42 Neb., 607; Sharp v. Johnson, 44 Neb., 165; Camp v. Pollock, 45 Neb., 771; Strahle v. First Nat. Bank of Stanton, 47 Neb., 319.) In the second place, the plaintiff absolutely failed to prove ownership, general or special, or right of possession; but, on the contrary, its own evidence was that it had no claim at all, and had refused to accept the mortgages under which alone there was any pretense' of a claim. -Possibly the district court thought that the evidence showed that the suit had not been authorized by Palmer, Blanchard & Co., and that that
Reversed and remanded.