23 Neb. 817 | Neb. | 1888
This action was instituted in the district court of Cheyenne county, and was in the nature of an action for deceit.
It is alleged in the petition that, on the 14th' day of August, 1884, defendant in error was the owner of a flock of sheep, consisting of 2,296 head; that on or about said day, one Philip Musheid applied to plaintiff to purchase said flock of sheep, the purchase to be made principally on time; that defendant in error was unacquainted with the character and financial standing of said Musheid, and was by him referred to plaintiff in error for information thereon, and that, in accordance with said reference, he applied to plaintiff in error for such information; that at
The answer of plaintiff in error consisted — First, of a-general denial of all the allegations contained in the petition, excepting such as were substantially admitted therein^ Second, as a plea in bar of the defendant’s recovery, the-answer contained the allegations, that defendant in error had caused to be instituted against the said Musheid am action, in the district court, upon the $1,000 note referred to, and had obtained a judgment ■ thereon for the full amount of principal and interest, and that no action had been taken by defendant in error since the rendition of’ said judgment to enforce the collection thereof. Third,. that on the 16th day of November, 1885, defendant in error instituted an action in the district court against the-said Philip Musheid and plaintiff in error, for the recovery of the $2,000 represented by the other promissory note referred to; that it was alleged in the petition that the-sale of the sheep was made to the said Musheid and plaintiff in error; that they were jointly interested in the purchase of said sheep, and that the said plaintiff in error falsely and fraudulently represented that the said Musheid was solvent, and fully able to pay all claims which he would contract and agree to pay; and that the plaintiff,, relying upon such representations, agreed to accept the note of the said Musheid, for the sum of $2,000 — -judgment-being demanded against both parties; that to this petition: Musheid answered, setting up a defense, and plaintiff in error filed a demurrer. Afterwards, but before trial, defendant in error dismissed his action, as to plaintiff in
By his reply, defendant in error denied all the allegations of the answer, except the fact of the recovery of the judgments referred to • but, as to them, the legal effect as a bar to this action was denied.
A jury trial was had, which resulted in a.verdict and judgment in favor of defendant in error. Plaintiff in •error seeks a reversal thereof, by proceedings in error to this court. A number of questions are presented by the petition in error and brief of plaintiff in error, which we deem it unnecessary to notice, for the reason that, in our view of the case, a new trial must be had, and in which the questions presented are not liable to again arise.
The testimony of the witnesses upon the trial, in so far as -the evidence for defendant in error extended, is conflicting, and so far as that conflict is concerned, we shall have nothing to say. But upon examining the bill of exceptions, we find an entire absence of proof that defendant was misled by the alleged representations of plaintiff in error. Plaintiff in error, in his testimony, denied absolutely the making ■of any representations as to the financial standing of Musheid. Every statement of fact testified to by defendant in ■error in that behalf was flatly and unequivocally contradicted by plaintiff in error in his testimony. We are therefore required to examine the testimony of defendant in error alone, for the purpose of ascertaining whether such -testimony, if believed by the jury in its entirety, would ■ support the verdict. This testimony may fairly be stated to be, that on the 13th day of August, 1884, plaintiff in ■error stated to defendant in error that he could sell the
It is insisted by plaintiff in error that defendant in error was guilty of negligence in accepting the notes of Musheid, and'therefore he cannot recover. In support of this, he
“4th. The court also instructs the jury that if the plaintiff had the means of obtaining correct information of the financial standing of Philip Musheid, though the defendant may have made representations to plaintiff, and plaintiff failed to make the inquiry, or used the ordinary diligence to ascertain, that any man, by exercising common prudence and business caution, could have ascertained; and if you find that the plaintiff did not exercise the ordinary ■caution of business men, nor use the reasonable diligence which every prudent person ought when making a sale of property under the circumstances as you find, after weighing well the testimony adduced, was made in this case, and that the defendant was not a person upon whose information plaintiff had a right to rely, — then the defendant is entitled to a verdict from you.”
While it might have been proper for the court to submit
The court gave to the jury, upon its own motion, instruction number one, which we here copy:
“ 1st. Before you can find for the plaintiff in this case, you must find by a preponderance of evidence that the said Philip Musheid, mentioned in plaintiff’s petition, bought the sheep, and gave the notes described in the petition as part of the purchase price, and that the defendant, Gustave Runge, knew that Philip Musheid was insolvent and ■without property, but nevertheless represented to the plaintiff, before Musheid bought the sheep, that Musheid was the owner of a section of land about two and one-half ■miles from Sidney, for which he had been offered eighteen ■thousand dollars, and was the owner of a large number of •sheep and other property, and was worthy of credit; that the plaintiff believed these representations, and was induced ¡to trust Musheid in consequence of the same; and that the ■notes given have not been paid. If you believe these things you will render a verdict for the plaintiff for the full amount of his claim.”
The latter sentence of this instruction is objected to, as virtually telling the jury to render a verdict for the plaintiff in the action for the full amount of the claim. This ■objection is also based upon the fact that- there was no
While, in this particular, the instruction stated the law correctly, it was objectionable, for the reason stated. Winter v. Bandel, 30 Ark., 362. Franklin v. Holle, 7 Mo. App., 241. Buck v. Leach, 69 Me., 484. S. M. & M. R. R. Co. v. Anderson, 51 Miss., 829.
An instruction which seeks to cover an entire case consisting of a number of elements, is, to the mind of the-writer, a somewhat, dangerous one, for the reason that, in the hurry of a trial, it is somewhat difficult for the trial judge to embody in one instruction all the elements as-shown by the pleadings and evidence without sometimes omitting a part. Therefore, the sentence, “If you believe-these things you will render a verdict for the plaintiff,” might better have been omitted. We think the law is-fairly stated in the brief of plaintiff in error, — that, to entitle a plaintiff to recover in a case like the one at bar, he must show that the representations were made substantially as-alleged ; that they were made under circumstances which would justify their belief by a reasonably prudmit man; that they were false; that they were relied upon by the-person to whom they were made, and so relying he acted thereon, to his injury.
It is next insisted by plaintiff in error that, by commencing the former action, defendant in error elected to prosecute his action ex contractu; that he is bound by that election, and that he cannot afterwards maintain an action ex delicto ; and therefore the institution of his action against Musheid and plaintiff in error jointly, and its final dismissal without trial, is a bar to this action.
As to the election, it is apparent that no such results-
For the errors hereinbefore referred to, the judgment of the district court is reversed, and the cause remanded for further proceedings according to law.
Reversed and remanded.