*1 attorney, the at- to his had mentioned term torney county attorney the court, talked to the promise no and that obtained had been promise. there defendant had not The told was such thought attorney had told defendant he sen- might years. entry This occurred after tence be for plea guilty. support contention. The record does defendant’s abundantly defendant understood the clear that rights, penalty, charge, possible nature plea guilty plea guilty. The the effect of voluntary intelligent represents choice be- here Thomp- alternate courses of action. State v. tween Turner, v. 204; W. 2d ante 201 N. State son, 763; Cruse, State v. 187 Neb. 183 N. W. 2d bargain plea existed 2d 629. 331, 190 N. W. request no out. withdraw carried There was was plea guilty. plea that the There to show promises any any mis- the result such was understanding. specifically found that The court intelligently voluntary plea made and the rec- findings. supports clearly ord appealed affirmed. from are sentence
Affirmed. Agnes Simpkins, Simpkins, as Mrs. Harold also known appellees. et
appellant, al., Kate Ritter v. 204 N. 2d 383 W. February 16, 1973. No.
Filed *2 Bauer, Gaiter appellant. & for Scott, ap- J. Duane Dowd of Riedmann, & Jeffries, Dowd pellees.
Heard before White, C. J., Spencer, Boslaugh, Smith, McCown, Newton, JJ. Clinton, and
Spencer, J. replevin brought Simpkins is a by Agnes action possession to recover the of a horse named Cider from Kate Simp- Jack wife and husband. appeals kins denying from a the restitution of damages. horse and We reverse. following questions presented by appeal: conveyance
1. Was the of Cider Dave to Kate Ritter outright unqualified conveyance of title and ownership, reversionary was a bailment created with a Agnes Simpkins? interest in reserved If 2. a bailment was created, then was Dave to be returned to Simpkins at the season; end of the 1971 or was such years return to be made the when was longer old, no on raceable, the death Kate Ritter? Simpkins, employed in Lincoln, who breeds and thoroughbred groom raises race horses. Kate Ritter is a and plater. Jack housewife. Ritter is a horsetrainer groom is one
A for horses, who cares and a plater is one shoes horses. Ritters, who who had training years, been horses for a number of trained previous horses for on occasions. There was relationship no between the other than friend- ship.
During season were had discussions taking concerning between and Kate training January In Cider Dave Cider Dave. Raymond, Nebraska, was sent from the farm January Anthony, On to Ritter farm at Kansas. 27, 1971, to Kansas, after Cider Dave sent pursuant Simpkins, request, signed phone jockey to club and mailed blank, certificate foal placed Kate certificate certified mail Kate. transferee, her name the certificate and in- serted the date transfer June Simpkins’ testimony she transferred indicates racing season, horse to Ritters end of time it She be returned her. because to train did this she was unable race pay horse. She testified that Ritters were they upkeep, entire cost Cider Dave’s return earnings. were receive all his paid Kate for the horse, conceded she *3 alleges given it her with the intention that was to she sole admit However, to be its she did was owner. eventually Simpkins. to be returned to was disagreement involved that The area of the was when place. the 1971 to take Was end of the return was racing not Kate until season, or, contended, she interpreted through to be him? This she was when with longer years old and no the race- horse was something happened down; or if to able; if he broke her. the transfer the certificate contended of permit made in to Kate order of foal was during racing the to race the horse season. Ritter indicating that such ar- other evidence adduced She frequently rangements the business. made theory, not made the the transfer was for her Under ownership, transferring the purpose of permitting purpose to Kate race horse and limited earnings during period that bailment retain all effect. to be in was
It is undisputed the returned at was be some time undisputed It also is credulity refused to sell It tests be- horse. give lieve that under the would circumstances she horse to testimony Kate for its entire life. The range is much more believ- within ability.
Generally,
agreement
prop-
to return the identical
erty makes the
not
contract one of
of sale,
bailment and
property
changed.
title to the
3 Am.
Jur.
§
2d, Bailments,
22,
927. As we said
Luikart v.
Bonding
(1935),
Massachusetts
& Ins. Co.
“
771,
very
In Mimick v. Beatrice Foods 167 Neb. Co. 93 N. 2dW. said: “The term ‘bailment’ comprehensively delivery personalty defined aas particular purpose, deposit, upon for some on mere implied, express purpose a contract, that after the person has fulfilled it shall redelivered to the be according who delivered it or dealt otherwise with kept directions, it, until he reclaims the case may be.” the transfer herein
We conclude bailment. therefore title remained in follows Simpkins. For reason the trial the bailor findings court’s in Kate Ritter that title was was in error. Judgment *4 remanded, cause with in- reversed posséssion in' to enter favor structions Agnes
and remanded.
Reversed J., dissenting.
Clinton, many This jury-waived court has that in times said finding law action the trial effect court’s has the same clearly as a verdict and not will be set aside unless wrong. Family Pester Co., v. American Mut. Ins. 186 N. W. 2d fundamental and is salutary doctrine and should be observed. We have principle violated the in this case and made ourselves the finder of the ing quotation facts. This is evidenced follow- opinion: majority from the “The testi- mony range much more is within believability.” agreement may un- indeed be an many agreements one, usual then in areas with may which we are unfamiliar seem but this unusual, surely credibility not the measure of the sole concerning might witness it. it Indeed, who testifies credibility have to do with whatever. pleadings An examination of the in this case does replevin pre- not, action, unusual in a disclose claim; cisely what interests the other than the right plaintiff’s possession. petition to immediate simply right stated she an interest claimed and had possession. general The defendants’ answer was denial. pleadings that the
An examination of the shows dis- ownership. pute Kate The defendant was over testifying to the course conversations which led horse, said: “She still to her claimed bay again colt I me to take the told her wanted horse, I not afford a and she said this is not could giving you anything, going I this horse to to cost am you, And I chance. said we would have it’s his reference to the With transaction think over.” “Agnes wanted know she testified: itself, again told her had decided we if what we horse of said T our own. She not afford a could you giving colt, that, do understand you this am try, can, do what we we will will said, well we I *5 happy she cried she was so had taken the colt known as Cider Dave.”
Exhibit 4 to specific which the trial court made re- Jockey ference was the Club for Cider Dave. appears On the following: back thereof there “All signed by previous transfers must be owner or author- agent, showing ized address of owner and new date of transfer.” Then is shown a transfer to Kate Ritter of Anthony, signature date Kansas, the 6-8-70, and of Agnes Simpkins. Mrs. I. The evidence shows that Kate registered owner, Cider Dave with the Secre- Racing tary of the Commission. Exhibit 19 referred by pamphlet Racing the court is of a rules adopted pursuant Commission State Nebraska among things, provide rules, to statute. These register Racing as Secretary “Each trainer shall follows: with the charge giving all the horses in his the name, age, breeding ownership sex, of each.” 12.36, Rule Racing, p. Rules of Nebraska ships 84. “All owner- except percentage in horse, a a trainer’s of his winnings, Racing Secretary, shall be filed with be- change start, fore the horse shall as also shall every ownership during meeting.” in thereafter Rule Jockey Registration p. “The Club 13.55, Certificate claiming pos- horses for all entered races must be in Racing Secretary. ownership When session changes Racing Secretary as a result a claim, Registration Jockey cause the Club shall Certificate to prior properly endorsed transfer to the be new owner’s person, persons 13.56, 98. “No Rule file.” shall claiming entered be race, enter allow a any against mortgage, claim is either held, which any kind, sale, or lien unless when or bill before entering the horse the written consent the holdér of conducting filed -the shall be with Association the claim '- p. 122. 15.13, Rule race.” said directly themselves, of do not course, rules estab- compliance noncompliance there- lish by who are in business such as w.ith plaintiff certainly and defendants is admissible evidence ownership-. Among on the issue of the items which court considered decisive is included a statement following requested by Simpkins signed by form according testimony Kate Ritter and to her back-dated request anything hap- at the “If should pen to me while I Cider Dave, own I here want the given Agnes Simpkins Simp- be for her colt to own.” kins denied the document in the form in kept she wanted but nonetheless she it. *6 documentary Also included evidence is a letter Simpkins mostly from to Kate about following: “Lannigan horses, contains the which moved trying mile have been find west us and out— % they yours plain don’t believe Dave is call us liars to — hope our face.” same letter “I Dave said: makes you money every time runs.” he Another letter from following: to Kate Ritter contained the “Kate n —I hope thing happens you Dave is the best that to —We why kept pushing liked him the start & that I from you. him chance.” acknowledged put that if Ritters had Cider claiming Dave in a race and if the had been keep claimed, Ritters have been entitled to would purchase price. may No matter words be used describe the what property interest of nature of the Cider is no about there doubt what the trier of the Dave, just more that there was far than fact found and sub- support findings. evidence stantial majority opinion Disregarded completely in the support finding following factors which could make Cider If Ritters Dave a win- court. Simpkins trial ner, profit because under would Nebraska per- breeder, would receive regulations she, parent purse in addition the value of the cent worthy increase. would Also she owned stock of note is the fact that Cider Dave a foot problem which made his future uncertain. The Ritters appar- trained and ently raised horses people, until took they Cider Dave none of their owned own. Ritter’s husband plater was a trainer.
was not a position to race the horse. The expert testimony showed cost or the value of the 90- day period Cider training get ready $1,000. $2,400 Cider Dave earned in 1971. $750 There was evidence which would indicate that at value beginning period Dave’s was from to $1,000. $500
I would follow rule which has always previously court. case followed wholly turns questions credibility. apparent claim of the majority opinion trial court misconstrued rules law is not applicable just correct. J.,
McCown,
joins in this dissent.
Douglas
County
Lanc,
v.
appellant,
Frances
Welfare
appellees.
et al.,
Administration