Booker v. Puyear

• Decision Date: 17 September 1889
• Citation: 27 Neb. 346,43 N.W. 133
• Parties: BOOKER ET AL. v. PUYEAR.
• Court: Nebraska Supreme Court

27 Neb. 346

43 N.W. 133

BOOKER ET AL.

v.PUYEAR.

Supreme Court of Nebraska.

Sept. 17, 1889.

Syllabus by the Court.

1. The petition held to state a cause of action against each of the defendants.

2. The evidence considered, and held, that upon it, and under the law of the case, the verdict and judgment must be upheld.

Error to district court, York county; NORVAL, Judge.Scott & Gilbert and Breckenridge & Breckenridge, for plaintiffs.

France & Harlan, for defendant.

COBB, J.

This action is brought on error from the district court of York county. Philip Puyear, the plaintiff below, brought his action for conspiracy against John W. Hinckley, Richard D. Booker, and Artnur A. Allen and Edgar H. Allen, partners in trade as Allen Bros., doing business at Omaha, alleging that on January 1, 1887, and prior thereto, the defendant Booker and the plaintiff were partners in the retail grocery business at York, doing a prosperous business, in which plaintiff had invested $1,000, and the good-will of the business was valued at $500; that on said day the defendants unlawfully entered into a conspiracy to break up his said business, and defraud the plaintiff of his money invested, and of the good-will of the business, in pursuance of which they agreed together that Booker should buy of plaintiff a one-half interest in said business, under the pretense of a fair and bona fide purchase, but intending not to pay for the same, and that the half interest should be delivered to Booker before payment, and that he should then declare himself insolvent, dispose of his property, and refuse to pay any of the indebtedness of the business, and inform Allen Bros., to whom the business of plaintiff and Booker owed $267 for groceries, that they should come and superinduce plaintiff to give a bill of sale to them of his half interest in said business, and that at the time of making and securing the bill of sale the defendant Hinckley should come forward and claim that he owned a half interest in the grocery business, which he had purchased of Booker, and to induce plaintiff to make the bill of sale to Allen Bros. that they should falsely promise the plaintiff and agree to take out of said business only groceries sufficient, at the market price, to pay them their debt of $267, and turn over the balance to plaintiff, and to furnish plaintiff sufficient groceries, in addition thereto, to carry on a grocery business at the place, and in the building, in which the business was then situate, and that they should falsely represent to the plaintiff that if he would sign such bill of sale that Hinckley would also sign it, and that they should further represent that said business should be turned back to plaintiff in a few hours after the bill of sale should be given to them, and that the plaintiff, in the interval, should stand on the sidewalk, in front of his store, and tell his customers that his business would be opened up in a short time, and he would go on with the business, and that Allen Bros. should put upon the store door the notice, “Invoicing; will be open soon,” and that they should, after obtaining such bill of sale and possession of the groceries and store-room, sell, or pretend to sell, all of the groceries for sufficient only to pay said indebtedness to them, $267, and costs and expenses of sale; that Booker and Hinckley should thus come into the possession, and thus become the owners, of said groceries, although, in fact, the same and the good-will were of the value of $1,500, and that each of said representations, promises, and agreements was fraudulent and false; that in pursuance of said conspiracy the defendant Booker, on the 29th December, 1886, under pretense of a bona fide purchase, obtained from plaintiff the one-half interest of said grocery business, and took possession of it, and declared himself insolvent, disposed of all his property, refused to pay any indebtedness of the grocery business, and so informed Allen Bros., who then came and promised and superinduced the plaintiff to give them a bill of sale of his half interest in the grocery business, and, to induce plaintiff to make such bill of sale, they falsely and fraudulently agreed to take out of said business groceries sufficient to pay their debt of $267, and no more, and to turn the balance back to plaintiff, and to furnish him sufficient groceries to carry on a business at the place, and in the building, at which the same then were, and that Hinckley would also sign the bill of sale, and that the grocery business should be turned back to plaintiff within a few hours after signing the bill of sale; and the plaintiff stood in front of the store building in which the business had been carried on, and told his customers that his business would be opened up in a short time, and be carried on in his own name; and Allen Bros. put on the door of the store building the words, “Invoicing; will be opened soon,” and, after getting possession of the groceries and the store-room, Allen Bros. sold and disposed of, or pretended to sell and dispose of, all of said groceries, and Booker and Hinckley became, or pretended to become, the owners thereof; and thus the defendants, by fraud and conspiracy, defrauded the plaintiff of all of his groceries and the business, and of the money the plaintiff had there invested, and his good-will therein, valued at $1,500, whereby the same is lost to the plaintiff, to his damage in that amount, no part of which has been paid; wherefore he prays judgment, etc.

The defendants Booker and Hinckley answered separately, denying the allegations of the plaintiff. The defendants Allen answered specially, objecting to the jurisdiction of the court, that the petition does not show that they are jointly liable with the other defendants, or either of them, on the cause of action set up, and that they are residents of Douglas county, (the service on them was not made in York county,) and that the petition which charges a conspiracy against them and the other defendants does not state facts sufficient to give the court jurisdiction of the persons of defendants. This plea was argued by counsel, and was overruled by the court. The defendants on leave answered, generally, denying every allegation of the plaintiff. There was a trial to a jury, with verdict for the plaintiff, assessing his damages at $311.20. The defendant's motion for a new trial having been overruled, judgment for the plaintiff was entered upon the verdict. The case is now brought to this court on numerous exceptions to the proceedings and judgment of the court below.

The evidence preserved in the bill of exceptions is voluminous and conflicting. The testimony of the plaintiff, who was examined as a witness on his own behalf, was evidently believed by the jury, and, so far as this court of review is concerned, must be taken as credible and true if not found to be inconsistent in itself. From his testimony it appears that in November and December, 1886, the plaintiff was carrying on a small grocery business in the town of York. Looking at his testimony alone, and without making allowance for the peculiar manner of his examination by counsel, it would appear, upon the first reading, that he was in the business by himself; but, on examining it by the light of other testimony, it appears, without discrediting any of his statements, that at the time he was in partnership with one Kempton. The plaintiff had invested in his business about $1,000. Kempton had invested really nothing, except his note to the plaintiff for $400. On December 27, 1886, the defendant Booker succeeded to the partnership of Kempton by purchase from Kempton or the plaintiff, or from both, (the fact is not clear;) but it is shown that Kempton's note was given up, and Booker's for a like amount was substituted. The plaintiff testifies that it was his understanding and agreement with Booker, when he came into the business, that he was to pay plaintiff this $400; that he then represented to plaintiff that he had the money in the bank to pay it, and that he was also to pay one-half of the bills then to be paid by the partnership for which he represented that he had the money. On the next day he came into the store, and, upon looking over the book-accounts, said that there was not as much on the books as Kempton had represented, and he then declared, in emphatic and bad language, that he would not put any money into the concern. That plaintiff then talked to him in a friendly manner, telling him that he would not be able to carry him, and that he would be obliged to sue him if he did not pay. That Booker replied that plaintiff could not make it out of him, and that he would not pay a cent. The plaintiff appealed to F. J. Ferguson, the agent and traveling man of defendants Allen, who lived in York, and he said that he would see Booker and talk with him, and see that the matter was fixed up. That Ferguson afterwards did see Booker, as he stated, but that Booker would do nothing, and Ferguson promised to write to Allen Bros., at Omaha, and told the plaintiff not to be uneasy, that they would not hurt him. That he would write for one of them to come up. That afterwards, on January 19, 1887, in the afternoon, Booker came into the store and proposed to plaintiff to buy his remaining half interest in the business. The language of the plaintiff's testimony is: “Well, I thought about it, and told him to pay me $700 cash, and I would do it. I thought it was better to get out than to be there in the way, and, if he would pay me, I would get out, and he wanted me to wait on him for the money. I told him I didn't want to wait; that I wanted to go into business again, and would have to have the money; and then he and Hinckley stepped out and were gone a few minutes, and then came back, and it wasn't over 10 or 15 minutes before Mr. Allen and his attorney came in. Mr. Allen began to talk, and I looked over the account-books, and...