Hyndshaw v. Mills
| Decision Date | 28 March 1922 |
| Docket Number | 21503 |
| Citation | 187 N.W. 780,108 Neb. 250 |
| Parties | SILAS C. HYNDSHAW, APPELLEE, v. BERT L. MILLS, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Thomas county: BAYARD H. PAINE JUDGE. Reversed.
REVERSED.
Sullivan Squires & Johnson and F. A. Reisner, for appellant.
H. L Wilson and N. T. Gadd, contra.
Heard before MORRISSEY, C. J., ALDRICH, ROSE and FLANSBURG, JJ., HOBART, District Judge.
The appellee, Hyndshaw, owned a garage business, a stock of goods incidental thereto, and certain accounts receivable. He alleges that he sold the same to the appellant, Mills, by oral contract, and that Mills agreed to pay for it as follows: (1) To pay the outstanding indebtedness that had been incurred in the previous conduct of the business; (2) to pay a note of some $ 2,600 which Hyndshaw owed to the Thedford bank and which was secured by a trust deed to real estate given by his mother, Dolly M. Hyndshaw; (3) to pay to Hyndshaw the balance then remaining of the purchase price, which price was to be determined by invoicing the stock on an agreed basis of values. Hyndshaw brought this action against Mills, alleging performance on his own part and acceptance of the stock of goods by Mills, and praying judgment for $ 6,000 under the contract. Mills, by his answer, denied the consummation of the contract, alleging that some preliminary negotiations were had, looking to such a contract, but were broken off by him upon the discovery of fraudulent misrepresentations made by Hyndshaw as to the value of the stock and the amount of indebtedness.
Upon trial to a jury the following verdict was returned:
"We, the jury, * * * do find for the plaintiff and fix the amount of his damages at $ 2,300, which must be applied on note of $ 2,673.25, and interest to date in favor of the Thedford bank and secured by trust deed on three lots owned by Dolly M. Hyndshaw."
On this verdict judgment was entered in favor of the plaintiff, Hyndshaw, and against the defendant, Mills, for $ 2,300 and costs, and Mills has appealed.
Numerous assignments of error are made. We shall consider first the sufficiency of the verdict to support the judgment rendered. Obviously the latter part of the verdict is of no effect, because the bank was not a party to the action. The question is whether such latter part may be rejected as surplusage, while the former part is taken as the finding of the jury upon the issuable facts. The case of Hallett v. Ransom, 97 Neb. 643, 150 N.W. 1017, is cited by appellee to support the judgment of the trial court, but we are of the opinion that the circumstances of the two cases are not sufficiently parallel. The syllabus of the cited case is:
"Where the verdict contains proper findings on the issuable facts submitted to the jury, clearly indicating the judgment which the law should pronounce, severable matter outside of the pleadings, the proof, the issues, the instructions, and the law may be rejected as surplusage."
In that case there was but one question for the jury to decide, to wit, the plaintiff's right to recover. That question being determined affirmatively, the amount of recovery was fixed by the law, the jury had nothing to do with it, and the jury had been so instructed. The jury's attempt to modify the amount was therefore, as said in the syllabus, outside the proof, the issues, the instructions, and the law. But the one issuable fact which it was the jury's province to determine was decided by the finding in favor of the plaintiff, and this court remarked that such finding was not only supported by the evidence, but responded to the demands of justice and equity.
In the case at bar the circumstances are substantially different. It appears that the defendant, Mills, was president of the Thedford bank when Hyndshaw gave to the bank the $ 2,600 note which Mills is alleged to have afterwards assumed as part of the purchase price of the garage. It is further fairly established by the evidence that the indebtedness which Mills is alleged to have assumed was more in the aggregate than the value of the property he would receive, so that Mills, under the contract, would not owe the plaintiff anything. It is impossible to avoid the...
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