41 Neb. 67 | Neb. | 1894
May .1, 1890, H. Rebfeld and Julius Rosenberg were in business, in the city of Omaha as partners under the firm name and style of “Omaha Chemical Works,” and being indebted to the parties, business firms and banks, plaintiffs in error herein and others, including the defendant in error, executed and delivered to Moritz Meyer, of the firm of Max Meyer & Co., the following conveyance or bill of sale:
“ For and in consideration of the sum of five thousand six' huiidreil and nineteen and (5,619.60) dollars to us in hand paid, and the receipt whereof is hereby acknowledged, we do hereby bargain, sell, convey, assign, and set over unto Max Meyer & Co., Omaha National Bank, A. J. 'Simpson,.Commercial National Bank, and Julius Meyer all our right, title, and interest in and to all the chattels, stock, goods, wares, merchandise, machinery, tools, implements, and fixtures contained in the building known as Nos. 310 and 312 South Eleventh street, in the city of Omaha; also, all goods, wares, and merchandise, a list of which, is hereto attached, marked ‘ Exhibit A/ and made a part hereof; it being the intent of this instrument to sell and convey all and each of said articles; and by these presente we do hereby sell, assign, transfer, and set over unto the above named vendees all our right, title, and interest in and to all book accounts due us or which may become dpe.”
Max- Meyer & Co. immediately took possession of the property described in the above instrument and proceeded to sell it and pay from the proceeds the sums due the different grantees named therein, the several amounts having been aggregated to form the sum named in the bill of sale as a consideration for the conveyance. • The Union Bag'&.
One of the assignments of error is as follows.;.- Jf.The said court erred in the instructions given to the jury, on the trial of said action, especially instructions numbered, lr,,,2, 3, 4, 5, 6, and 7, given on its own motion.” Under,, this assignment counsel for plaintiff in error make an. attack on but one of the instructions, viz., No. 3. This - was- the only, instruction of those given to which exception was noted at the time of the trial. In the motion for a- new trial and in the petition in error it was grouped with .others,, there being no specific and definite assignment o£ complaint as against any single or particular one. Nos. .Aand, 5 ;.of the instructions given by the court on its own., motion'were entirely proper and correct, and having determined, this,to be true, we will not further consider this .assignment of error, agreeably to the rule of this court announced in Hiatt v. Kinkaid, 40 Neb., 178, where it was held.; “An assignment of error as to the - giving en masse of certain instructions will be considered no further than to-ascertain that any one of such instructions was properly; given.” (See, also, McDonald v. Bowman, 40 Neb., 269; Jenkins v. Mitchell, 40 Neb., 664.)
The only other assignment of . error to which‘.counsel
It is strenuously contended by counsel for defendant in •error that this case is within the rule announced in Bonns v. Carter, 20 Neb., 566, 22 Neb., 495; but Bonns v. Carter, in so much as it refers to the assignment law, was overruled in an opinion written by Irvine, C., in the case of Jones v. Loree, 37 Neb., 816, and had been in the case of Hamilton v. Isaacs, 34 Neb., 709, and Hershiser v. Higman, 31 Neb., 531, we may say overruled, but not in express terms. Commenting upon the doctrine of Bonns v. Carter and the scope to be given to the provisions of our assignment law, in the case of Landauer v. Mack, 39 Neb., 8, Ryan, C., says: “The argument of plaintiff in error seems to be based largely upon the theory that the several’ mortgages in fact constituted an assignment of the firm of G. H. Mack & Co., contrary to the terms of the assignment law of this state. It is true that in Bonns v. Carter, 20 Neb., 566, language was employed by a portion of this court which would seem to justify this contention of the plaintiffs in error. It is •quite clear that the provisions of the assignment law should not be made to operate more broadly than its terms express; in other words, its operation should not be extended by implication. The assignment law prohibited assignments made in any other manner than that fixed by its terms, but did not undertake to abrogate the provisions of section 20
Reversed and remanded.