Beebe v. Latimer

• Decision Date: 23 November 1899
• Citation: 80 N.W. 904,59 Neb. 305
• Parties: BEEBE ET AL. v. LATIMER.
• Court: Nebraska Supreme Court

59 Neb. 305

80 N.W. 904

BEEBE ET AL.

v.LATIMER.

Supreme Court of Nebraska.

Nov. 23, 1899.

Syllabus by the Court.

1. A person having a contract lien on chattels, coupled with possession, may maintain an action for conversion against the owner of the property, who has seized it in violation of the pledgee's rights.

2. A defective or ambiguous petition may be aided, and its infirmities cured, by the averments of the answer.

3. A motion which cannot be granted in the form in which it is made is properly denied.

4. Evidence examined, and held to sustain a finding and judgment in favor of plaintiff for a certain amount.

Error to district court, Madison county; Robinson, Judge.

Action by George A. Latimer against Samuel S. Beebe and others. Judgment for plaintiff, and defendants bring error. Affirmed on conditions.Oleson & Oleson and Barnes & Tyler, for plaintiffs in error.

Isaac Powers and Geo. A. Latimer, for defendant in error.

SULLIVAN, J.

This action was brought by George A. Latimer against Samuel S., John L., and Frederick Beebe, on the theory that the defendants had converted to their own use certain property upon which the plaintiff had a contract lien, coupled with possession. The district court tried the cause without a jury, found the issues in favor of the plaintiff, and rendered judgment accordingly.

Briefly stated, the events out of which the litigation arose are as follows: Frederick Beebe was the owner of a stock of merchandise in the city of Norfolk, and Mrs. C. M. Jones was the owner of some Omaha real estate and other property. Mr. J. J. Jones, acting under a limited agency from his wife, agreed to trade her property for Beebe's stock of goods. In pursuance of this agreement, possession of the store and stock was surrendered to Mr. Jones, who immediately turned over to Beebe a deed for the Omaha realty, together with the other property covered by the contract. By the terms of the contract it was further provided that Mrs. Jones should execute to Beebe her promissory notes for the difference between the agreed value of her property and the invoice value of the goods. This agreement Mrs. Jones refused to perform, and repudiated at once the entire transaction, on the ground that it was not within the limits of her husband's authority. Beebe declining to accept a return of the goods, and refusing to reconvey the Omaha real estate, an action was commenced in the district court of Douglas county to cancel the deed from Mrs. Jones, and to compel restitution of the other property delivered by her husband in part performance of his contract. While the action was pending, Latimer, who is a lawyer doing business at Norfolk, rendered professional services for Mrs. Jones, and received from her the key to the store in which the goods were kept, with assurance that he might retain possession of the property until his bill should be paid. After the Douglas county litigation had been pending some months, a compromise was effected, by the terms of which Beebe agreed to take back the stock of merchandise and surrender to Mrs. Jones all the property obtained in the trade, except the Omaha real estate, which, on account of the incumbrances against it, was considered only of slight value. This agreement was consummated, and Beebe took...