47 Neb. 692 | Neb. | 1896
• The defendant in error was the plaintiff in the district court, and in her petition charged that Murphey, on or about August 3, 1889, assaulted her and took from her possession gold and silver coin of the amount and value of $463, — her money, — and converted the same to his own use. The. defense set up was that Murphey had been a surety on the official bond of Alexander Virgin, plaintiff’s husband, as.treasurer of a school district; that judgment .was recovered on the bond for $1,292, and that Murphey, by virtue of said judgment and at the request of Mrs. Virgin, paid upon said judgment, and for other expenses in connection with Mr. Virgin’s default, $466.08; that Virgin had been the owner of certain land, which, without consideration, he conveyed to Mrs. Virgin, who held the title in trust for him; that Mr. and Mrs. Virgin agreed, in consideration of Murphey’s paying the money referred to, upon the sale of said land to apply its proceeds to the repayment of Murphey; that on August 3,1889, Mr. and Mrs. Virgin sold said land and out of the money received paid to Murphey' said sum of $466.08, being the money here sued for, and took and received from Murphey a receipt acknowledging the payment of the same in full satisfaction of Murphey’s claims aforesaid. The plaintiff recovered judgment.
The first assignment of error argued is that the verdict is not sustained by the evidence. Accord
Certain rulings on the evidence cannot be considered, for the reason that in the petition in error there are no assignments specifying such rulings.
The remaining assignments relate to the instructions. It is claimed that the second instruction, which stated the defense, was erroneous because not complete. The instruction was as follows: “For answer the defendant alleges that on and prior to the 3d day of August, 1889, the plaintiff and her husband, Alexander C. Virgin, were indebted to him in the sum of $466.08, and that on the said 3d day of August, 1889, the plaintiff and paid Alexander paid and delivered to the defendant the sum of $466.08, being the sum of money due the defendant from the plaintiff; and for further answer the defendant denies each and every other allegation contained in plaintiff’s petition.” It is argued that the court should have instructed the jury specifically, as
The fourth instruction was as follows: “You are the judges of the credibility of the witnesses1 and of the weight to be attached to each and all of them, and yon are not bound to take the testimony of any witness as absolutely true, and you should not do so if you are satisfied from all the facts and circumstances proved on the trial that such witness is mistaken in the matter testified to by him, or that for any other reason his testimony is untrue or unreliable.” This instruction is complained of because of the statement that the jury was not bound to take the testimony of any witness as absolutely true, it being argued that the jury is compelled to believe a witness where not contradicted or impeached. We think the whole instruction, in connection with the fifth, which is the usual instruction in regard to considering the interest, bias, demeanor, and intelligence of witnesses, states the law correctly. A fair construction of the court’s language would not authorize the jury to arbitrarily and unreasonably disregard uncontradicted testimony from an honest, unbiased, intelligent, and apparently truthful witness. The instruction does, however, tell the jury that they need not blindly accept testimony, but should weigh it in connection with all the facts
The first instruction requested by the defendant was to the effect that even if Murphey’s act in getting the money was wrongful, still, if afterwards the plaintiff paid the balance due him and demanded and obtained a receipt therefor, such acts would be a ratification. We think the principle of this instruction was covered by the court’s sixth, which was that if the defendant forcibly and without the consent of plaintiff took the money, and the plaintiff afterwards, with full knowledge of the material facts, voluntarily consented to defendant’s retaining such money as a settlement of an existing debt against her and her husband, then there would be a ratification. The court’s instruction was in this respect fully as advantageous to the plaintiff as the one requested, and was a more accurate statement of the law. The ratification would arise, as stated by the court, from plaintiff’s consenting that the money taken should be so retained. The payment of the balance and taking a receipt, elements embodied in the instruction requested, would merely be evidence of such consent.
The second instruction requested, while somewhat involved in its language, was in effect that if the money was due Murphey, plaintiff could not recover, although it was taken against her consent. This doctrine could' not for a minute be tolerated. A man has no right to resort to robbery to collect his claims.
The remaining instructions requested were on the subject of ratification and were covered by the court’s sixth.
Judgment affirmed.