271 N.W. 287 | Neb. | 1937
A second appeal of this replevin action comes to this court. For the former opinion, see 128 Neb: 763, 260 N. W. 396. The case was tried the second 'time in the district - court on the petition and the general denial of the defendant. The judgment entered on the verdict of the jury was that the defendant was entitled to the truck or its value of $375.
This case was tried and submitted to the jury on the theory that the note secured by the chattel mortgage on the truck had not been paid in' cash, but under the general denial of the defendant evidence was offered of a breach of warranty and misrepresentation in the sale which, it was claimed, damaged her in a sum sufficient to offset the amount due the plaintiff. In this jurisdiction, the defendant in a replevin action may, under a general denial, prove any fact which amounts to a defense.
• Certainly, if the plaintiff is indebted to the defendant for damages resulting from a breach of warranty or misrepresentation in the sale of the truck involved in the transaction, which damages are at least equal to the amount due upon the note, it is a valid defense in a replevin action. Such defense is provable under a general denial. In a replevin action td foreclose a mortgage on chattels, the defendant under a general denial may prove damages resulting from a breach of warranty in the sale thereof as an offset to show that plaintiff at the commencement of the action was indebted to her in an amount at least equal to the amount due on the note. Davis v. Culver, 58 Neb. 265, 78 N. W. 504.
The evidence is undisputed that there was an unpaid balance due on the note secured by this chattel mortgage at the time this replevin action was instituted. Therefore, the plaintiff was entitled to the possession unless the plaintiff was indebted to the. defendant for damages in an amount at least equal to that due on the note. The amount of such damages must be established by a preponderance of the evidence. A critical examination of the evidence re
No doubt the jury were misled by the erroneous submission of the case. The court should not have submitted the case to the jury upon issues which had no support in the evidence. Although not requested, the court must instruct on the issues presented by the pleadings and evidence. Hall v. Rice, 117 Neb. 813, 223 N. W. 4; Blue Valley State Bank v. Milburn, 120 Neb. 421, 232 N. W. 777. But there was not sufficient evidence to sustain the contention of the defendant that she had been damaged more than the amount due on the note by the alleged misrepresentation
Where the defense in a replevin action to foreclose a chattel mortgage is that the plaintiff is indebted to defendant, the failure, of the court to instruct the jury that the amount so due must be at least equal to that due on the mortgage note to defeat plaintiff’s cause of action is prejudicially erroneous.
Under the record, the plaintiff was entitled to have its motion, made at the close of all the evidence, for a directed verdict sustained. This action was commenced March 3, 1933, nearly four years ago. It has been tried twice to a jury. There is no merit in the defense. Upon the record, the plaintiff is entitled to a directed verdict. Therefore, the judgment is reversed, and the cause is remanded to the district court, with directions to enter a judgment for possession and costs in favor of the plaintiff.
Reversed.