39 Neb. 259 | Neb. | 1894
The plaintiff in this action in the dower court (defendant in error here) filed a petition alleging the copartnership of the defendants, and further, that on or about the first day of May, 1887, and for some time prior thereto, this plaintiff was in possession of certain personal property, to-wit, about $750 or $850 worth of personal property, consisting of hoi’ses, mules, work harness, wagons, wheel scrapers, etc., said property being held by this plaintiff and in the possession of this plaintiff at the said time for the purpose of securing a claim of $196.30 this plaintiff had against one J. B. O’Connell for feed furnished said horses and mules, for money advanced to said O’Connell by this plaintiff, and for livery furnished said J. B. O’Connell by this plaintiff; that on or about the first day of May, 1887, while said plaintiff was in possession of said property, and while said plaintiff was retaining possession of said property to secure the payment of said $196.30 from said J. B. O’Connell, defendants John Joseph and William Grafe came to plaintiff and represented to plaintiff that these defendants had a claim of $500 against said J. B. O’Connell, and that it would be greatly to the advantage of said defendants if said plaintiff would release his lien on said property and turn the said property over to the said J. B.' O’Connell; and said defendant, on condition that said plaintiff would release his lien on said property and turn said property over to said J. B. O’Connell, agreed to assume and pay said amount of $196.30 due and payable from said O’Connell to this plaintiff; that relying on the said agreement and undertaking of said defendants, this plaintiff released said lien on said property, and surrendered his pos
The facts, as they appear from the evidence, are substantially as follows: During the fall, winter, and spring of 1886 and 1887, one John B. O’Connell, a railroad contractor, was working on sections of a railroad then being constructed in and through Saunders county, Nebraska, and while there, and so engaged, had bought supplies o( Joseph & Grafe, who were running a general store in Wahoo, in said county, and became indebted to them in a considerable sum. He also had dealings with the plaintiff Smith; then proprietor of a livery and feed stable, and became indebted, to the amount of the account in suit, for the care and feeding of some stock, horses, and mules, and for which plaintiff says O’Connell had given him a verbal lien on the stock and other property, wagons, and scrapers as security for the payment of the account. He states that O’Connell told him he could hold the property until he was paid his bill. On the 15th of March, 1887, O’Connell executed a chattel mortgage to Joseph & Grafe in the sum of $500 on the horses of which Smith had possession at the time. He alleges Joseph & Grafe made the promise to him to induce him to surrender the possession of the property. Joseph & Grafe
The first contention in the case is that the promise of Joseph & Grafe to Smith was within the statute of frauds, therefore void. The case of Rogers v. Empkie Hardware Co., 24 Neb., 653, cited in his brief by defendant in error, is, we think, in point. Parties in business at Wahoo turned property over to the Empkie Hardware Company, or its salesman, in payment of the debt due the company; and Rogers’ attorney, being sent to collect a claim against the parties who had turned the goods over to the company, in a conversation with the company’s salesman then in possession of the goods, was told by him that if he would not interfere with him in the possession of the goods he would pay (he plaintiff’s claim out of the first money received from the sale of the goods. This was accepted and acted upon, and afterwards the company sold the stock of goods and refused to pay Rogers’ claim. It was argued that the promise was within the statute of frauds. The court held ■on this branch of the case as follows: “A direct promise of an agent of a wholesale mercantile establishment, who is in the possession of the goods of an insolvent firm in satisfaction of a.debt of his principal, made to an attorney of another creditor of such insolvent firm, to pay a claim held by said attorney against said firm if he will not disturb him in the possession of the goods, is not a promise to answer for the debt of another, and need not be in writing; ” and in the body of the opinion we find the following statement: “The first question presented is whether or not the contract was
In Fitzgerald v. Morrissey, 14 Neb., 198, the following
The plaintiff in error excepted to the giving of instruction No. 1, as requested by plaintiff in court below, and alleges it for error, and this is one of the errors insisted upon and argued in the brief for him in this court. This instruction is as follows:
“The jury are instructed that a verbal contract of the pledge of personal property to secure a debt, when the party to whom the pledge is given has possession of the property, is valid and legal and will be a lien upon the property so pledged so long as it remains in the possession of the party to whom the lien is given. And if, in this case, you find that the said J. B. O’Connell gave the plaintiff in this case a lien on the property described in the plaintiff’s petition, and that the said defendants, while the said property was in the possession of the plaintiff, agreed with the plaintiff that they should pay the plaintiff’s claim if he would surrender possession of the said property, and that in consideration of the said agreement of the said defendants, the plaintiff released the said property and surrendered possession thereof, this would be a valid consideration for the agreement of defendants to pay the said plaintiff, aud the said agreement would be binding upon the defendants.”
The plaintiff in error offered an instruction numbered 4, which was as follows:
“ You are instructed that before the plaintiff can recover in this case, he must show by a preponderance of the evidence not only that the defendant promised to pay the debt of O’Connell, but that, in addition to such promise to pay the same, the defendants obtained an advantage by reason of such promise, which they did not before have.”
The court refused to give this instruction, which was excepted to by plaintiffs in error, and the refusal to give the instruction is assigned as errbr. The subject of this instruction was covered by No. 1, asked by defendant in error, and there was no error in such refusal. It has been frequently held by this court that where an instruction has been given on a point in controversy in a case, it is not error to refuse to give another instruction submitting the same in substance on the same point.
It is also urged that the court erred in giving instruction No. 2, requested by defendant in error, which reads as follows:
“ The jury are instructed that if you find by the evidence that the defendant John Joseph was acting for the firm of Joseph & Grafe, then any contract made in reference to the payment of the plaintiff’s claim, if you find any was made, would be binding upon said firm, and both of the defendants would be bound by said contract.”
We have already disposed of the question, as to whether
The court below refused to give instruction No. 3, requested by plaintiffs in error, and this is complained of as error. The instruction was as follows:
“The jury are instructed that the mere delivery of an itemized statement of the account of the plaintiff against the man J. B. O’Connell to the defendants will not be in itself sufficient to prove an assignment from the plaintiff to defendant.”
Whether the above is’correct or not cannot, we think, affect the result of this case. The court below did not give any instructions in reference to the question of the assignment of the account as alleged in the petition and denied in the answer and the evidence introduced in regard to its delivery to the plaintiff in error. After careful consideration and much deliberation, we are unable to discern any tendency, in the refusal of the court to instruct the jury on this point, prejudicial to the rights of the plaintiffs in error. In order to arrive at the verdict returned by them, the jury, from the very nature and component parts of. the case, were forced to conclude first that the conversation occurred and the promise was made to pay Smith’s claim on surrender of the possession of the property. This was sufficient to sustain the verdict without any consideration of the as
The giving of instruction No. 6 by the court on its own motion is also alleged as error. The following is a copy of the instruction:
“If the jury find for plaintiff, you will find for him in the sum of $191.65, with seven per cent per annum from March 4, 1891.”
We cannot discover wherein the plaintiffs in error are prejudiced in the giving of this instruction. To make it as favorable for the plaintiffs in error as possible, the defendant in error would be entitled to interest on the account from December 1, 1887, or six months after the date of the last item in the account. Taking the last item in the account to be June 1, 1887, which is probably a few days later than it should be fixed, the verdict is by a small sum in favor of the plaintiffs in error as to amount; and we conclude there was no error in the instruction of which they could complain.
This disposes of all the alleged errors argued in the briefs, and we conclude that the case was fairly submitted to the jury, and the verdict of the jury was right, and the judgment is
Affirmed.