Bennett v. Rogers

• Decision Date: 04 January 1882
• Citation: 11 N.W. 314,12 Neb. 382
• Parties: J. S. BENNETT AND OTHERS, PLAINTIFFS IN ERROR, v. C. M. ROGERS AND OTHERS, DEFENDANTS IN ERROR
• Court: Nebraska Supreme Court

11 N.W. 314

12 Neb. 382

J. S. BENNETT AND OTHERS, PLAINTIFFS IN ERROR, v. C. M. ROGERS AND OTHERS, DEFENDANTS IN ERROR

Supreme Court of Nebraska

January 4, 1882

ERROR to the district court for York county, where the cause had been brought on appeal from the county court. The action was brought in that court by Rogers et al., against Bennett et al., to recover the value of eleven acres of corn, alleged to have been converted by said Bennett et al. to their own use. Both parties claimed the corn by purchase from one Dodge, the plaintiffs by purchase between the 18th and 25th of September, the defendants by agreement on the 19th of September, made between Bennett, agent for Ferguson, who owned the land, and Dodge, tenant, by which the latter turned over the corn for rent due. Verdict and judgment in county court, and in district court on appeal, before POST, J., for plaintiffs, and defendants there brought the cause up on a petition in error.

REVERSED AND REMANDED.

France & Sedgwick, for plaintiffs in error.

Montgomery & Harlan, for defendants in error.

OPINION

COBB, J.

The plaintiffs in error present two points.

First. That the verdict is not sustained by the evidence.

Second. That the court erred in its instructions to the jury.

There is little or no conflict in the testimony. There can be no doubt that Dodge sold the corn to the defendants in error nor that he turned the same out to Bennett, one of the plaintiffs in error, in payment of the rent of the ground upon which it and other crops were raised. The question is which was prior in point of time. The transaction being equal in good faith and consideration on the part of the parties to the suit, preference must be given to the one having precedence in point of time, if that can be ascertained. The evidence in support of each transaction is entirely independent of that in support of the other, and neither casts the least discredit upon the other. The corn was standing in the field, and so not susceptible of that manual delivery which usually follows the purchase of chattels.

The defendants in error were both sworn as witnesses on their own behalf at the trial. They both testified to the purchase by them of the corn from Dodge, sometime between the 18th and 25th of September. Neither of them pretends to fix any point of time between those two dates for the transaction, although closely pressed by counsel to do so. There was other testimony on the part of the plaintiffs below, all of which tended to corroborate them, but shed no light upon the only point of difficulty in the case.

The plaintiff in error, Bennett, as a witness on behalf of defendants below, testified that, being agent for the owner of the land on which the corn and other crops were raised Dodge came to him at his office in...