18 Neb. 579 | Neb. | 1886
In August, 1882, Ludwig and Franze Herse rented the farm of the plaintiff for four years, commencing on the 1st day of November, 1882. The terms were that the plaintiff should “furnish one-half of all seed and one-half of all
First, Hid the plaintiff sell the property to the Herses*581 either by an absolute sale or conditionally? Upon this point the testimony is conflicting. The plaintiff and some of his witnesses testify that there was no sale, while an ■equal number testify on behalf of the defendant that the Herses purchased the property and were holding it as •owners. The attorney for the defendant contends that if there is any evidence to sustain the verdict it will not be set aside. The rule adopted by this court, however, is that where a verdict is clearly wrong it will be set aside and a new trial granted. Mathewson v. Burr, 6 Neb., 319. Fisk v. State, 9 Id., 66. Smith v. Evans, 13 Id., 316. Victor S. M. Co. v. Day, 13 Id., 408. Gandy v. Pool, 14 Id., 101. Staman v. State, 14 Id., 68. Kuhns v. Bankes, 15 Id., 92. Shapleigh v. Dutcher, 15 Id., 563. It is unnecessary, however, to invoke the rule in this ease, as the testimony is nearly equally divided and is not very satisfactory on either side. That some arrangement was made by the plaintiff whereby the Herses were to retain possession of the property in question was clearly established, and in our view the jury would have been justified in finding a conditional sale — a sale with a condition that the title should remain in the plaintiff until the property was paid for. But under the statute, where such a sale is not evidenced by writing signed by the vendee, and a copy thereof filed in the office of the county clerk of the proper county, it is not valid against a purchaser from the vendee in actual possession. Comp. Stat., Chap. 32, § 26. If there was a conditional sale this was not done, and the defendant having so far as the evidence shows purchased without notice, is entitled to protection. The evidence covers 288 pages, and it would subserve no good purpose to review it at length. It is so nearly equally balanced that this court cannot say that the verdict is wrong.
Second, That the court erred in permitting one T. M. Pranse, an attorney, to testify to communications made by ■the plaintiff to him. There is no claim that at the time*582 this conversation took place the relation of attorney and client existed between the plaintiff and Franse. The parties seem to have been on friendly terms, and it is evident that the communications were made not as clients, but as voluntary statements outside of the relation of attorney and client. Sec. 328 of the code prohibits an attorney from testifying where there is no waiver by the party in whose favor the prohibition is enacted, “concerning any communication made by him to his client in that relation, or his advice thereon,” etc., or “any confidential communication properly intrusted to him in a professional capacity,” etc. Code, § 333. To render the communication privileged the relation of attorney and client must exist, otherwise the communication is not privileged. As all the proof shows that the relation of attorney and client did not exist when the communications were made, they are not privileged, and the court did not err in admitting them in evidence.
Third, The jury found the value of the property to be the sum of $285, and assessed the damages for the detention of the property at $1 per day, in all $584.
Whereupon the court rendered judgment as follows: “It is therefore hereby adjudged and determined by this court,, that the defendant have a return of the property taken on said writ of replevin, or, in case a return of said property cannot be had, that he recover of said plaintiff -the value thereof, assessed at $285, and his damages for withholding - the same, assessed at $584, and cost of suit, taxed at $431.83,” etc.
It is only in cases where a return of the property is had that the party to whom the property is returned is entitled to damages for the detention. The rule allowing the value of the use is peculiar to replevin, and grows out of the fact that the party to whom the property is awarded seeks to recover the property itself, and not its value. In such case, when the property is returned, the party to whom the return is made is entitled
Judgment accordingly.