79 Neb. 751 | Neb. | 1907
Mrs. Meserve was a masseuse, and in February, 1905, she was the proprietor of Meserve’s Massage Parlors in Lincoln. At this time the plaintiff became connected
1. The fifth instruction given by the court to the jury upon its own motion ivas as follows: “You are instructed that, if you find that the property in controversy had been the property of- Mrs. Meserve and in her possession, and that until the constable levied upon and took the same there had been no change of possession evidenced by any acts that would give notice to outsiders of such change, such as a change of location of the property, or transfer of the keys, where the property was kept, change of business signs, change of business advertising, change of dominion or control thereof, or other visible acts indicating a change of OAvnership to such an extent that one would say there had been no apparent change of possession, and, if you find that Helen Trautwein was a creditor of Mrs. Meserve at the time said property was taken in execution, then the sale claimed by the plaintiff is presumed to be fraudulent and void, and the burden of proof is upon the plaintiff in such case to establish that such purchase Avas made in good faith and without fraudulent intent. The burden, -hoAvever, in this case would be
2. The defendants "also object to instructions Nos. 6 and 8 as slighting the evidence. Instruction No. 6 stated that the failure of a purchaser of goods to t.ake possession of the kind described in instruction No. 5 does not render the sale conclusively void as against creditors; it merely casts upon the purchaser the burden of proving his good faith in the transaction after it has been shown that there was no apparent change of possession; that, if they found that the plaintiff was a purchaser in good faith of the goods in controversy without the knowledge of any fraudulent intent upon the part, of Mrs. Meserve, the failure upon her part to take possession would not render the sale to her void. Instruction No. 8 was to the effect that a change of location of the property sold is not necessary to make a loona fide sale, if from all the evidence the jury find that, notwithstanding there was no change in the location of the property, the purchase Avas made in good faith; that, on the other hand, the fact that there was or was not a change in the location of the property sold is one proper to he considered in so far as it may bear upon the question Avhether or not there Avas an apparent change
3. Finally, the defendants urge that the evidence does not sustain the verdict. If the jury believed the testimony of Mrs. Meserve and the plaintiff, they could come to no other conclusion than they did; and the question of their veracity was a question for them to determine.
We therefore recommend that the judgment of the district court he affirmed.
By the Court: Eor the reasons stated in the foregoing opinion, the judgment of the district court is
Affirmed.