35 Neb. 746 | Neb. | 1892
This was an action of replevin instituted by plaintiff in error to recover the possession of a newspaper printing outfit. The property was taken under the replevin writ, and the possession thereof delivered to the plaintiff. There was a trial to a jury, who returned a verdict finding the right of property and right of possession of an undivided half interest of the property in the defendant at the commencement of the action, and assessed the value of his said interest at the sum of $175, with damages at $1 for the unlawful detention. Plaintiff filed a motion for a new trial, which was overruled by the court, and thereupon the following judgment was rendered:
“It is therefore considered and adjudged by the court that the said defendant recover of and from the said plaintiff the sum of $175 as heretofore by the verdict of the jury found due him as the value of the property in controversy, and also the sum of $1 as damages for the unlawful detention of the same, and his costs in and about this suit in that behalf expended, taxed at $46.33, for whioh execution is awarded.”
A reversal is asked on the ground that the verdict is not sustained by sufficient evidence.
On the 24th day of May, 1889, the property was owned by the plaintiff and one L. P. Sine, each owning an undivided one-half thereof. On that day defendant purchased Mr. Sine’s interest for the sum of $250, the plaintiff furnishing defendant the money for that purpose. The defendant also gave plaintiff at said time his promissory note for the said sum of $250, payable $10 each month, with interest at ten per cent. To secure the payment of the note defendant executed and delivered to plaintiff a written instrument which is, in effect, a chattel mortgage upon his interest in the property, by the terms of which plaintiff had the right
Complaint is made that the second instruction given by the court on its own motion is erroneous, in that it ignored the proposition that if the defendant had not made the payments as required by the terms of the mortgage, or that the plaintiff deemed himself unsafe and insecure, then plaintiff was entitled to the possession of. the property. There was no error in failing to so charge the jury, since plaintiff, neither in his petition nor upon the trial, claimed the right of possession by reason of the mortgage, but as the absolute owner of the property. In his petition he alleges that he is the owner of the property, and upon that theory the case was tried.
Error is assigned because the court refused to give the following instruction to the jury, requested by the plaintiff : “ The court instructs the jury, as a matter of law, that a sale and delivery of goods on conditions, such as are contained in the bill of sale, or lease offered in evidence, to-wit, that the property is not to vest until the purchase money is paid, does not pass the title to the vendee unitil the condition is performed, and a vendor, in case the condi
The judgment is erroneous because it was rendered for money absolutely, and was not in the alternative, for a return of the property, or the value thereof in case a return could not be had, as required by section 191a of the Code. The statute is imperative, that where the property has been delivered to the plaintiff in replevin, in case a verdict is returned for the defendant, the judgment must be for the return of the property, or its value in case it cannot be returned, or the value of the defendant’s possession. This statutory provision is mandatory. (Hooker v. Hammill, 7 Neb., 231; Lee v. Hastings, 13 Id., 508.) In the last case cited there was a stipulation that the property could not be returned, and yet the court held that it did not preclude the necessity of an alternative judgment.
It is argued by counsel for defendant that the statutory provision for alternative judgment is for thé benefit of the
The error in the form of the judgment in the case at bar will not necessitate a new trial, but a proper judgment may be rendered upon the verdict. The judgment is therefore reversed and the cause remanded with instructions to the court below to enter a judgment in the alternative for a return of the property or the value thereof found by the jury, in case no return can be had, and for the damages assessed by the jury for the unlawful detention, with costs.
Reversed and remanded.