37 Neb. 657 | Neb. | 1893
This is an action commenced by the plaintiff to recover from the defendant the sum of $98.60, balance due on a bill of merchandise sold to the defendant in error. Trial was had and judgment for plaintiff. Defendant appealed to the district court. The defendant answered the petition of the plaintiff, admitted the claim of the plaintiff, and for further answer set up a counter-claim against the plaintiff' in the sum of $250, moneys which he claimed to be due him on account of failure of a warranty of title to certain saloon fixtures which he alleged in his answer he purchased from the plaintiff for the sum of $550. The plaintiff replied denying each and every allegation of new matter contained in the answer. A trial was had to a jury.
■ In addition to the testimony in behalf of the defendant, and sustaining his cause of action, the evidence tends to show the following facts : In 1884 one George Poffenbarger was indebted to H. R. W. Hartwig & Co., a wholesale liquor firm of St. Joseph, Missouri, in a large sum of' money, $600 of which was secured by chattel mortgage upon saloon fixtures and buildings located in the town of Blue Springs. In 1889 Poffenbarger sold the. saloon fixtures,' with the consent of Hartwig & Co., to the firm of Sivey & Bloom, who paid ■ $300- in cash and executed toHartwig,,& Co. a promissory note for $300 due July 8, 1889, as collateral to the note and mortgage which they already held against Poffenbarger. On or about the 5th
The theory on which this case was tried on the part of defendant in the court below was that Hartwig claimed to
“State of Missouri,
County of Buchanan,/
'
“ Personally appeared Ernst F. Hartwig, who being duly sworn by me, upon his oath says that on July 5, 1889, he appointed George W. Poffenbarger his agent to hold and keep in his possession the saloon fixtures and pool and billiard tables located in the Sivey & Bloom saloon at Bliie Springs, Nebraska, until- he could find a purchaser therefor; that about the fore part of May, 1890, said George W. Poffenbarger' sold said fixtures and pool and billiard tables to J. L. Gordon, which sale he confirmed. i
“Ernst F. Hartwig. I
“Sworn and subscribed to before me this first day of December, 1890. Max Andriano,
“[seal.] Notary Public? |
“St, Joseph, Mo., Dec. 1,1890. ’
“Mr. G. W. Poffenbarger, Blue Springs, Neb. — -DeaiÍ Sir: Yours to hand and all contents duly noted. Enclosed I hand you my affidavit which I think will be satisfactory in covering disputed points in the Sivey & Bloom and J. L. Gordon business. As to sale made to J. L. Gordon! about May 1,1890, of billiard and pool tables and barroom' fixtures, will state that you were empowered by-us to make the transfer as our agent of above named fixtures then in your possession. J. L. Gordon accepting note of Sivey & Bloom, amount of same, $300, bearing interest at ten 'pef cent; date of note April 8, 1889, payable 90 days after date. On this note J. L. Gordon paid interest to May ij 1890, $32.50, and agreed that he would pay principal and interest amounting to $315 November 1, 1890, without fail. Of course Gordon’s failure on complying with thé agreement leaves -him out, and the goods revert back to us: I hope you will succeed in getting everything in good shape so that there will not be any more disputes here*after. Yours respectfully, E. F. Hartwig.”
The court instructed the jury as follows :
“The court instructs the jury that where a vendor in possession of personal property either by himself or agent sells the same to a purchaser who buys in good faith, believing he is obtaining a clear title to the property, there is an implied warranty of title by the vendor; and if in such case'there is an outstanding claim of title, evidenced by a duly filed chattel mortgage on the property sold, and the mortgagee takes possession of said property under a writ of replevin, thereby depriving the purchaser of the possession of said property, and upon the triál of the replevin suit the judgment for the possession of the property is for the said mortgagee, then and in that case the purchaser of said property would be entitled to recover, against the vendor of the same, damages by reason of the failure of the vendor’s title.”
This instruction as an absolute proposition of law is no doubt correct, but it is not applicable to the testimony in the case as it in effect assumes that the plaintiff had sold the property to the defendant.
The plaintiff asked the following instructions, which were refused:
• “2. The jury are instructed that if you believe from the •evidence that H. R. W. Hartwig & Co., prior to the time that the defendant Gordon purchased the goods in question had a claim against one Sivey, and that the only part that Hartwig & Co. took or had in the sale in question was for the better securing an indebtedness due them, and that at said time the real title to such property was in said Sivey, then you are instructed that the failure of said title at any subsequent time is not chargeable to this plaintiff, and you should find for the plaintiff.”
These instructions should have been given. This was the plaintiff’s theory of the case as presented by his pleadings and proof, and he had a right to have the case as presented by him submitted to the jury. The court therefore erred in refusing the instructions. There is some complaint that certain oral instructions were given to the jury, to which exceptions were taken on that ground. Our statutes provide that all instructions and modifications thereof shall be in writing, and it is ground of error if they are given orally. An exception, however, must be taken on that ground. This seems to have been done in this case. The judgment of the district court is reversed and the cause remanded for furthér proceedings.
Reversed and remanded.