64 Neb. 1 | Neb. | 1902
In this action of replevin, at the close of the testimony, the court orally instructed for a verdict in favor of defendant : “That we find that at the commencement of this action the defendant had the right of possession of the goods described in the petition and special interest therein and that the value of his special interest is the sum of $85 and assess his damages for the detention at one cent.” Plaintiff in error fthed a motion for a new trial, with ten assignments of error; the first six being to the point that the state of the evidence did not warrant the action of the court; the seventh being for errors of law occurring at the trial; the eighil, that there was no finding as to the value of the property; the ninth, that there was no finding as to ownership; and tenth, that the verdict is not supported by the pleadings, as' defendant merely denied generally. These assignments are renewed in the petition in error, with the additional one that the court instructed orally for the verdict. It is not necessary to consider this, as no objection on that ground was taken in the lower court either at the time or in the motion for a new trial. It seems equally unnecessary to examine the complaints as to the form of the verdict. It has been repeatedly held that a defendant under a general denial may prove and recover for attachment liens upon the property replevied. Horkey v. Kendall, 53 Nebr., 522, 527; Merrill v. Wedgwood, 25 Nebr., 283. It is hard to see why a warehouseman’s lien, if it exists, should not be equally privtheged to
The question mainly argued by counsel is whether or not any warehouseman’s lien was in fact shown. Plaintiff claims that no actual keeping of a public warehouse was shown, and that defendant’s evidence, so far as it went, tended merely to show a special contract for storage by the month, and no lien arose. Counsel for defendant seems to concede that, if there was any agreement inconsistent with a retention of possession on the part of defendant until payment, there can be no lien. The contention of plaintiff is that the agreement for payment by the month is inconsistent with such retention; that under it there could be no claim for payment until the expiration of a month, and no agreement that the property should remain for that length of time was shown. It seems that plaintiff’s husband had been tenant of the building, and, at the close of his tenancy, asked leave to permit this property to remain until such time as it should be required to be moved. The property consisted of bricks, lumber, and a bother and a large sheet-iron smokehouse, and was scattered all over the house, and occupied a large share of the floor. The “house” was known as “The Cold Storage Building.” Under this arrangement, plaintiff’s husband paid $10 monthly for two months, up to March 1, 1897, and some eight or nine months later she demanded the goods, and was refused them until storage should be paid “according to agreement.” She then commenced this action. The action was commenced November 18, and the property removed a feAV days later. If the fact that plain
It is therefore recommended that the judgment of the district court be reversed, and the cause remanded.
Day and Kirkpatrick, CC., concur.
By the Court: For the reasons given in the foregoing opinion, the judgment of the district court is reversed, and the cause remanded for further proceedings.
Reversed and remanded.