48 Neb. 590 | Neb. | 1896
This action was instituted in the district court of Lancaster county by defendant in error to recover of plaintiff in error the value of a stock of millinery and the fixtures of a millinery store which she alleged had been converted by plaintiff in error. It was stated in the petition, in substance, that on April 1, 1892, defendant in error was engaged in the millinery business in Lincoln and owned and was in possession of a stock of millinery and fixtures, appropriate for the storing and exhibition of a stock of the kind mentioned, all located in a room in what was designated the “Little Block,” in the city of Lincoln, and that the stock and fixtures were of the value of $1,053.17; that on the date aforementioned she was indebted to plaintiff in error for the rent of the storerooms referred to, in the sum of $240, and executed and delivered to him an instrument in writing, which was in form what is denominated a bill of sale of the stock of goods and fixtures, the sum stated therein as a consideration being $240, the amount of rent which she then owed the plaintiff in error; that while on its face an absolute bill of sale, the instrument alluded to was given as security for the payment of the amount of its stated consideration, and was in fact a chattel mortgage; that on or about the 22d day of April, 1892, the plaintiff in error, under and by virtue of the said instrument, took possession of the goods and fixtures, and without the consent, of defendant in error, and without first advertising or giving notice as required by law, sold them at public auction and converted them to his own use. Plaintiff in error, in his answer, pleaded that defendant in error had given a chattel mortgage on the goods and fixtures to her mother, and that this, on the 19th day of April, 1892,
An application for continuance was made on behalf of plaintiff in error, wbicb was overruled by tbe trial judge, and bis action in this particular is assigned as an error. Tbe motion for continuance was supported by an affidavit, one of tbe witnesses named therein, and as to whom and tbe evidence wbicb it was expected to elicit from him there was tbe strongest showing, was after-wards present and sworn and testified on tbe part of tbe plaintiff in error; hence tbe error, if any, was not prejudicial to tbe extent it involved tbe attendance of this one witness. As to any others, tbe showing made in tbe affidavit was wholly insufficient, and this assignment must be overruled.
It is claimed that there was error in tbe allowance of
It is of the errors assigned that the court erred in not allowing the plaintiff in error to show by witnesses cognizant of the facts that the sale of the goods was carefully conducted and duly advertised. As to the fact of the careful conduct of the sale it was not error to exclude the evidence. If the sale was made without the prelimi
Another assignment is that the court erred in not allowing the defendant, plaintiff in error, to show the prices the goods brought at public auction as evidence of their market value. If the sale was at or near the time of conversion, or, if any appreciable time had intervened, it be shown that there had been no change in the goods or market value,evidence of the prices for which they sold at auction is admissible on the question of their value. (Campbell v. Woodworth, 20 N. Y., 499; Brigham v. Evans, 113 Mass., 540; Kent v. Whitney, 85 Am. Dec. [Mass.], 739.) For the first offer of such evidence we are referred in the brief of plaintiff in error to page 211 of the bill of exceptions, but on turning to that page of the bill we can discover there nothing which bears in the slightest degree on the point of the prices the goods brought at auction, or any offer of any evidence on the subject. On page 212 appears the following: “Counsel for defendant here offers to show by this witness that the goods taken were sold at public auction and that they were put up to the highest bidder, and great care taken in securing the best possible prices for said goods.” If this is what counsel alluded to in the brief, it is not an offer to show any prices for which any of the goods sold, and the refusal of this offer cannot be made available under the assignment of error now under consideration. We are also referred to page 237 of the record for another offer of evidence on the subject of the prices the goods sold for at the auction sale. This offer and objection thereto was as follows: “Defendant here offers in evidence a memorandum of the amount of cash received and the amount for which the goods were sold at the auction sale, for the purpose of
It is urged that the court erred in failing to instruct the jury respecting the rights of the parties respectively under the terms of the contract of lease. Under the issue as made by the pleadings, this question Avas immaterial. In the answer the plaintiff in error states that the goods were taken and sold by virtue of the authority conferred by the bill of sale, and the right to take possession and sell, under the lease, was not of the issues.
It is claimed the trial judge erred in refusing to give instruction designated “1st” requested by plaintiff in
Under the assignment of “errors at law occurring at the trial and duly excepted to” the counsel argue as erroneous two rulings of the trial court in the admission of evidence. This form of assignment in the petition in error was insufficient to raise the questions presented. Assignments in a petition in error, in regard to the admission of evidence, must be specific and point out the rulings of which complaint is made.
It is further urged that the verdict is contrary to the evidence. A number of the.facts were undisputed; as to others the evidence was conflicting, notably as to whether the bill of sale was in fact a security for the payment of a debt and in effect a mortgage, and on the subject of the value of the goods and fixtures; but on these, as on all other essential points, there was sufficient evidence to sustain the finding of the jury. The judgment of the district court is
AFFIRMED.