Bollman v. Lucas

• Decision Date: 06 January 1888
• Citation: 36 N.W. 465,22 Neb. 796
• Parties: BOLLMAN, SHERIFF, v. LUCAS.
• Court: Nebraska Supreme Court

22 Neb. 796

36 N.W. 465

BOLLMAN, SHERIFF,

v.LUCAS.

Supreme Court of Nebraska.

January 6, 1888.

Syllabus by the Court.

Where a witness, in his examination in chief, or re-examination by the party calling him, on account of his possessing special knowledge, skill, or experience is permitted to give his opinion or judgment on a question of quality or values, if he is permitted to give the source of his special knowledge, experience, or skill, it will be confined to general statements. And when he is permitted to narrate the facts and circumstances of a special transaction, outside of the case on trial, for the purpose of enabling the jury to compare the facts and results of such transaction with those of the case on trial, and in that manner impress them with the soundness of his opinion or judgment, held, error.

To avoid a sale upon the ground that it is fraudulent as to creditors, the purchaser must have knowledge of the fraudulent purpose of the seller, or have notice of such facts tending to show a fraudulent purpose as would put a man of ordinary prudence on inquiry. Temple v. Smith, 13 Neb. 513, 14 N. W. Rep. 527.

Error to district court, Knox county; CRAWFORD, Judge.

Replevin by James Lucas against Reuben Bollman, as sheriff, to recover a stock of goods seized by the latter under writs of attachment. Verdict and judgment for plaintiff, and defendant brings error.E. F. Gray, Cleland & Lothrop, Wigton & Whitham, and Bartlett & Cornish, for plaintiff in error.

H. C. Brome, for defendant in error.

COBB, J.

This was an action of replevin in the district court of Knox county. The plaintiff in error, defendant in the court below, is the sheriff of said county. His answer was a general denial; and on the trial he sought to justify the taking and detention of the property replevied, which consisted of a stock of general merchandise, under five several orders of attachment, issued in as many several actions pending in the district court of said county against McClintock & Wilson, whose property he claimed the said replevied goods to be. There was a trial to a jury, with a verdict and judgment for the plaintiff. The defendant brings the cause to this court on error, and assigns 51 errors. It is not deemed necessary to set out these assignments here, as, without passing upon either of the other questions involved in the case, this opinion will be confined to those arising upon the admission of certain testimony offered by the plaintiff, and the giving and refusal by the court of certain instructions hereinafter specifically referred to.

From the evidence of the plaintiff, defendant in error, it appears that McClintock & Wilson, of Creighton, were engaged in mercantile business, having as their stock in trade the goods in controversy. They owed him the sum of $1,500 on the original purchase of the said business by them. This debt was long past due, and had been renewed, or payment postponed, from time to time. About the first of June, 1885, they wrote to him, at his residence in Wisconsin, to the effect that they were likely to be pushed by other creditors, etc. This induced him to come out to Creighton, to look after and collect the said debt. Almost immediately upon his arrival at Creighton, the attorney of Paxton & Gallagher, of Omaha, who had a demand of $1,719.08 against McClintock & Wilson, appeared on the scene, and threatened to take out an attachment. Thereupon Lucas, the defendant in error, purchased the stock of goods from McClintock & Wilson, and taking out of the consideration his own claim, also paid the said claim of Paxton & Gallagher, and claims of other creditors of McClintock & Wilson, held by the banks at Creighton against them for collection, amounting in all to the sum of $4,575, the consideration named in the bill of sale, thereupon executed and delivered by the said McClintock & Wilson to Lucas. It appears that the stock of goods and bookaccounts described in and conveyed by the said bill of sale to Lucas constituted the entire, or nearly the entire property and assets of the said McClintock & Wilson, leaving the claims of the attaching creditors, amounting to $4,148.42, unprovided for. It is quite impossible to arrive at the value of the goods and accounts, from the evidence; but it may be assumed that the evidence tends to fix it at nearly twice the amount stated as the consideration of the bill of sale. No invoice of the stock was taken before the sale, but one was commenced immediately after the transfer, but never completed, having been interrupted by the attachment proceedings. Invoices and appraisements were, however, made of the goods taken on the several orders of attachment covering the entire stock of goods; but the appraisers scarcely pretended to place a true value upon them. The goods were also appraised when taken by the coroner on the order of replevin. The amount of such appraisement appears to have been $5,502.42.

Upon the trial, Mr. S. J. G. Irwin, not Cowin, as plaintiff in error has it in the brief, was sworn as a witness on the part of the plaintiff. This witness was also one of the appraisers summoned by the coroner to appraise the goods, and who assisted in the discharge of that duty. Upon his examination in chief, he was asked by counsel for the plaintiff: “ Question. What were those goods worth on that market at that time?” He answered: “ Answer. Probably thirty-five or thirty-six hundred dollars.” The witness was then cross-examined by counsel for the defendant; and, upon his re-examination, counsel for plaintiff asked him the following question: “ Q. Mr. Irwin, how long was it after this appraisement was made by you that you took charge of another stock of goods there in the town of Creighton as assignee?” Defendant objected as not being proper re-examination, and as being immaterial and incompetent, which objection was sustained by the court. Counsel for the plaintiff then submitted the following offer: “I offer to prove, upon re-examination, by the witness, that a short time or some time after the appraisement was made that he has been interrogated with reference to, within six months afterwards, at Creighton in Knox county, as assignee, he took charge of a stock of general merchandise, similar in character to the stock appraised in this case, and containedin the same room in which this stock had been kept, and that he sold the same at retail, for cash, for some two months, and closed the bulk out, and sold the bulk for cash--the balance. That the stock of goods was a better selected and more desirable stock than the one in controversy in this case, and that the total amount realized was less than fifty-five per cent. of the cost price of the stock.” Defendant objected as being incompetent, and not proper re-examination, and in no particular fixing the value of the goods in question. The objection was overruled by the court. Thereupon counsel asked of the witness the following question: “ Q. You may state how long after this appraisement was it that you took charge of this other stock of goods?” Defendant objects as being incompetent, and not the proper way to ascertain the value of the goods in controversy, and not proper re-examination. Objection sustained by the court. Thereupon counsel for the plaintiff asked of the witness the following question: “ Q. You may state whether or not you took charge of a stock of goods in Creighton since this appraisement as assignee?” Defendant objects as being incompetent, and not the proper way to ascertain the value of the goods in controversy, and not proper re-examination. Objection overruled by the court, whereupon the witness answered. “ A. Yes, sir; I did.” Counsel continued the examination: “ Q. When was that?” Counsel for defendant objected as last above, which objection was overruled by the court, and witness answered: “ A. I took charge of the store on the eighteenth day of January, 1886. Q. You may state whether or not the goods that you took charge of were of the same class and character of the goods contained in the stock that you appraised?” Defendant objects as being incompetent, not the proper way to ascertain the value of the goods in controversy, and not proper re-examination, and because the period is too far removed--some seven months from the time of the replevin in this case. The objection was overruled, and the witness answered: “ A. Yes, sir; they were similar, and the same class of goods--it was a general stock. Q. Well, how did they compare with the stock in controversy in quality?” Defendant objected as last above, with the same ruling, and witness answered: “ A. They were a little newer stock of goods; they hadn't been on the shelf as long; they were a very good stock of goods. Q. What do you say as to whether they were a better stock than the McClintock & Wilson stock?” Defendant objected as above, with the same ruling. “ A. I think they were some better. As I said before, they were not quite as old a stock of goods. Q. Now you may state, if you know, whether there was any actual difference in the value of that class of goods--that is, whether or not that class of goods were different in value, or their value was different in January, 1886, when you took possession of this stock, from what it was in June, 1885, when you appraised the other stock?” Same objection, and same ruling. “ A. Taking the stock in general, I don't think there would be any difference particularly. Of course, there may have been a little difference in a few articles. Q. You may state, if you know, in what manner this last stock was disposed of--how it was handled?” Same objection, and same ruling. “ A. That is, you want to know from the time the assignment was made? Q. Yes, sir. A. The sheriff first took charge, and the sheriff sold goods out of the store, I think in the neighborhood of thirty days, at retail; and I went in on the eighteenth day of January, and I sold goods until March, sometime--I think...