Popejoy v. Burr

94 Neb. 52 | Neb. | 1913

Fawcett, J.

Plaintiff brought suit in the district court for Webster county to recover the value of two mares and a mule colt, stolen from him across the line in’Kansas, which animals he alleged were sold to defendant and by defendant resold without his knowledge or permission, of the alleged value of $400. The answer was a general denial. From a verdict in favor of plaintiff for $300 and judgment thereon, defendant appeals.

The principal contentions here are: The identity of the larger of the two mares; that the court erred in some of the instructions given upon its own motion and in refusing certain other instructions tendered by defendant; errors of the court in the admission and exclusion of evidence; and that generally the evidence is insufficient to sustain the verdict. We have carefully examined the abstract prepared by defendant, and are unable to see how, so far as the identity of the animals in controversy is concerned, any other verdict could be sustained than the one returned by the jury. On the question of the value of the animals, the evidence is in sharp conflict. There is testimony in the'record which would have supported a larger verdict. There is also testimony which would have supported a verdict for a considerably less sum. The jury saw the witnesses upon the stand, heard them testify, and, under the well-settled practice, their verdict must control. It would serve no good purpose to discuss the rulings of the court upon the introduction and exclusion of evidence, or as to the giving and refusal of instructions', as we do not see how the errors complained of could have in any manner changed the result. The defendant- was evidently an innocent victim of a horse thief, but he seems to have had a fair trial, and must stand the consequences of tlie fraud practiced upon him.

Affirmed.

Letton, Rose and Hamer, JJ., not sitting.