79 Neb. 215 | Neb. | 1907
The petition alleges, in substance, that the plaintiffs delivered to the defendant for sale, for the plaintiff’s use, a steam engine, separator and stacker belonging to the latter, and that afterwards the defendant sold the engine to S. F. Negley and O. M. Anderson, for $1,100,
Concerning the new matter pleaded in the reply, we think it must be said that, if it was intended as a charge' or tortious conversion, it is inconsistent with the petition, and ought upon motion or objection to have been stricken out or disregarded, and that, if it is treated as consistent therewith, it is immaterial. According to the petition, all articles involved in the suit became, by the agreement or consent of the parties, the property of the defendant, for the amount or value of which it became unconditionally liable to the plaintiffs, and the relation of bailor and bailee theretofore existing between the parties wholly ceased. Now, a person cannot be charged with tortious conversion of property of which he is absolute owner and of which he is at liberty to make such disposition as he sees fit, and in every system of enlightened jurisprudence a person, when sued, either civilly or criminally, has a right to be informed by a formal pleading of the precise nature of the wrong of which he is accused, and to he called upon during the progress of that litigation to respond to no other charge. Section 109 of the code provides that, when the answer contains new matter, the reply may also contain new matter constituting a defense to that contained in the answer. In this instance' the new matter pleaded in the answer amounts to no more than that the defendant denies that it has, by consent or agreement of the parties, become the owner of and absolutely liable for the price or value of the articles mentioned in the petition, and avers that it has received them as bailee, and continues liable for such of (hem as it has not already accounted for, in that capacity, and no other. It is extremely difficult to make out either from the pleadings or from the bill of exceptions what issue it was supposed by counsel for either party was being tried, and the instructions given and refused by the
We think that the judgment ought to be reversed and a new trial ordered, in the hope that the issues will be reformed and the cause resubmitted in a more intelligible manner.
By the Court: For the reasons stated in the foregoing opinion, it is ordered that the judgment of the district court be reversed and a new trial granted.
Reversed.