Markel v. Moudy

• Decision Date: 01 July 1882
• Citation: 14 N.W. 409,13 Neb. 322
• Parties: JACOB E. MARKEL AND THOMAS SWOBE, PLAINTIFFS IN ERROR, v. JOSEPH MOUDY, ET AL., DEFENDANTS IN ERROR
• Court: Nebraska Supreme Court

14 N.W. 409

13 Neb. 322

JACOB E. MARKEL AND THOMAS SWOBE, PLAINTIFFS IN ERROR, v. JOSEPH MOUDY, ET AL., DEFENDANTS IN ERROR

Supreme Court of Nebraska

July 1, 1882

ERROR to the district court for Dodge county. Tried below before POST, J.

REVERSED AND REMANDED.

W. H Munger, for plaintiffs in error.

N. H Bell for defendants in error.

OPINION

LAKE, CH. J.

This is a proceeding in error to reverse a judgment of the district court for Dodge county.

The defendants in error were plaintiffs below, and their cause of action as made by the petition was deceit in the sale to them by the plaintiffs in error of an eating-house, fixtures and furniture, together with the business of keeping the same, in Fremont, on the line of the Union Pacific railroad.

The questions presented for our present consideration arose on the trial before a jury, and are in many respects similar to some of those decided in Markel v. Mundy, 11 Neb. 213.

Perhaps we were not quite so explicit in deciding that case as we ought to have been in the matter of the proper mode of valuing the property as a basis for estimating damages, if any there were, which the Moudys were entitled to recover. We there simply stated, in general terms, the rule to be "the difference, if any, between the price paid for the property and its actual value at the time of the purchase," which "must be ascertained from the testimony of witnesses competent to judge of it." By this, however, we by no means intended to be understood as holding, or even intimating, that the value of the house could be taken without reference to the business for which it was specially intended, and which it is settled by the pleadings was included within the purchase as an entire property.

The house was intended, bought, and used, solely for the purpose of conducting in it the business of keeping a railroad eating-house at the place where it stood. For this particular purpose, it is reasonable to presume that it had a peculiar value, while for any other, or disconnected entirely from that business, and considered as an "old building," as it was by the witnesses, it probably had comparatively little. Therefore, upon the question of the value of the property purchased, the defendant in error should have been required to produce witnesses having some knowledge of such business, and of the adaptiveness of the house and fixtures to that business, and thus have had its value fairly estimated as a whole. This, however, was not done. The witnesses called, not only did not profess to have a knowledge of this business, but, judging from their avocations, they being carpenters merely, evidently had none which could aid the jury in reaching a just conclusion. And these witnesses were permitted, against objection, to give their opinions as to the value of the house alone, as "an old building" and without the least reference whatever to the business carried on in it. As showing the necessary connection of the business of keeping the eating-house with the house itself, it is only necessary to refer to the last charging paragraph of the petition, which is in these words: "And that said personal property (referring to the house, fixtures and furniture,) and business aforesaid, at the time of said sale and purchase, and ever since, have been without benefit or value to said plaintiffs, and utterly worthless, whereby the plaintiffs have sustained damage, as they aver, to the amount of eight thousand dollars." This was denied in the answer.

The matter in issue being, then, the alleged worthlessness of the "personal property and business," which was purchased as a whole, for a single and unapportionable consideration, the absolute necessity of including that business in estimating the value of the purchase is apparent. Yet, notwithstanding this, not a single witness was called on the part of the defendant in error as to what the tangible property and business, taken together as a unit, was really worth. This want of evidence as to the value of the business included in the sale renders the verdict erroneous for want of evidence to support it.

It is assigned for error that testimony was admitted against objection as to the comparative amount of travel over the Union Pacific road during the years 1876, 1877, and 1878. This testimony would have been material and entirely competent if it had been followed by a showing that opportunity was given, by the stoppage of trains, during the time the Moudys were there, for the passengers upon them to patronize the house. We find, however, that as to the stoppage of passenger trains during the time in question there is a total want of evidence, so that the amount of travel...