44 Neb. 316 | Neb. | 1895
This case originated before a justice of the peace and grew out of the failure of the parties to reconcile between themselves a difference of $2.50. It is true that the constitution guaranties the right to be heard in the court of
The principal question presented is that of the applicability of the herd law to cities of the metropolitan class. The plaintiff in error contends that the law is not applicable to such cities and that as to them it has been superseded by the city charter, Compiled Statutes, chapter 12a, section 34. The section referred to gives the mayor and council power
It is next urged that the defendant was estopped from claiming the statutory lien because of a statement made by him to the plaintiff in the conversation during which the disagreement arose as to the amount of damages. The story is thus told by the plaintiff as to what occurred: “I say,‘How you do, Mr. Ambler? You sent your man over/ and I said, ‘I heard you sent your man over, and that you had some of my hogs taken up.’ No, I say this way: ‘ You send your man. I heard you got some of my hogs taken up; ’ and Mr. Ambler say, ‘ Yes, they yours / and I say, ‘ How did you get them?’ He say, ‘I got them right out of your pasture, and drive them into my yard, and pen them up.’ T say, ‘Did they done any damage at the time you drive them over and pen them up?’ He say, ‘No, they didn’t do a great deal of damage.’ I say, ‘What you want from your trouble?’ He say, ‘I want five dollars to-day and ten dollars to-morrow.’ I say, ‘No, that too much) not $2.50 enough?’ He say, ‘No, I got edge of you now. Last summer your cow was in my granary, and I got the edge of you now.’ I say, ‘If you won’t take $2.50, that is all right.’” Ambler admits that he told Lingonner that he had driven the hogs out of the hog pasture into his own yard, but says he considered Lingonner’s question so ridiculous that he made this answer by way of a joke. We presume that even Mr. Ambler will not now insist that this was a very brilliant piece of humor, but we cannot agree with the plaintiff that the punishment for it should be by holding him estopped from now claiming the fact to be otherwise. To constitute an estoppel in pais the party in whose favor the estoppel operates must have altered his position in reliance upon the conduct of the
It is urged that the judgment must fail for want of proof of the value of the hogs. The point made is that while Ambler’s interest must be limited to the damage sustained by him, still, if the hogs themselves had a value less than that damage, his interest would also be limited by the value of the hogs. .The point is not important, because the plaintiff alleged in his petition that.the hogs were of the value of $25, and he is estopped by that averment.
It is argued also that the evidence is insufficient to show that the hogs were trespassing, and that it is insufficient to establish the damages allowed. These, points involve no question of law and we shall not discuss the evidence on the subject. We think it is sufficient on both points.
Judgment affirmed.