Bullis v. Drake
| Decision Date | 29 September 1886 |
| Citation | 29 N.W. 292,20 Neb. 167 |
| Parties | R. C. BULLIS ET AL., PLAINTIFFS IN ERROR, v. BENJAMIN DRAKE, DEFENDANT IN ERROR |
| Court | Nebraska Supreme Court |
ERROR to the district court for Richardson county. Tried below before BROADY, J.
AFFIRMED.
E. W Thomas and C. Gillespie, for plaintiffs in error.
E. B Stevens and Isham Reavis, for defendant in error.
This was an action of replevin brought by the defendant in error against the plaintiffs in error. There was a trial to a jury, with verdict and judgment for the plaintiff in that court. The defendants below bring the cause to this court on error.
Plaintiffs in error by their petition in error present the following points:
1. The district court erred in overruling the motion for a new trial.
2. The verdict of the jury is contrary to the evidence, and is not sustained by the evidence, and is contrary to law and to the instructions of the court.
3. The court erred in refusing to set aside the verdict on account of the misconduct of the attorney of defendant in error in his argument to the jury in making statements outside of the record in the case.
4. The court erred in admitting in evidence statements said to have been made by Albert F. Pool when neither defendants nor their agent were present.
5. The court erred in giving the instructions asked for by defendant in error.
The first error assigned is merely formal. The only grounds upon which a new trial was or could have been claimed are those set forth in the other errors assigned, and they will be considered in their order.
The second error assigned is based upon the evidence. Is it sufficient to sustain the verdict?
The undisputed facts of the case may be stated as follows: Mrs. M. E. Gandy, the principal defendant, was the owner of certain live stock, consisting of one two-year-old mule colt, one dark red two and one-half year-old bull, four cows, two heifers, six sucking calves, two last spring's calves, and two steers. This stock she sold to a young man named A. F. Pool. On the 15th day of October, 1881, A. F. Pool, for the purpose of securing the payment of his promissory note of that date, payable to M. E. Gandy or bearer, October 15, 1882, for the sum of three hundred thirty-one dollars and twenty cents, with interest at ten per cent, executed to said M. E. Gandy a chattel mortgage in the usual form of and upon all of the said live stock. A copy of this mortgage was filed in the county clerk's office on the 19th day of the same month. The following endorsement also appears upon said copy: On the 1st day of November following, A. F. Pool made a public sale at the residence of J. P. Pool, four or five miles from Humboldt [20 Neb. 169] --the residence of the Gandys--at which a number of head of cattle, horses, farming implements, and a mule answering the description of the mule described in the said chattel mortgage, and doubtless the same mule, were sold at public vendue. The mule was bid off and purchased by R. W. Coleman. Coleman kept the mule about a month and then sold it to the defendant in error. Towards the last of January, 1882, M. E. Gandy placed the chattel mortgage in the hands of her co-plaintiff in error for foreclosure, who as her agent seized the said mule upon said mortgage, and thereupon the defendant in error brought the action of replevin and replevied the said mule. During all the time of these transactions, Dr. J. L. Gandy, the husband of M. E. Gandy, was her duly authorized agent, and for her transacted all of her part of the business connected therewith. It is also an undisputed fact, that some time near the middle or latter part of the month of October, 1881, a quantity of posters or notices of said sale were printed at the office of the Farmer's Advocate newspaper, at Humboldt, Richardson county, and that said posters contained a description of said mule as one of the articles of property to be sold at said sale. The evidence as to nearly or quite all of the other facts involved in the case is conflicting. The preponderance of the evidence, so far as can be gathered from reading the bill of exceptions, is to the effect that the printing office above referred to was, during the entire period of the transactions involved in this case, owned, controlled, and managed by parties not connected in any manner with this case. And particularly, that the only connection of the Gandys with said printing office or newspaper consisted in the fact that Dr. Gandy had contributed the sum of ten dollars to the fund with which the said office had been bought by the then present owners, and for which he was to have received stock to that amount whenever the joint stock company, by which the said enterprise was to have been carried on, should be fully organized. But it cannot be denied that there is evidence tending to prove that during the whole of the months of September, October, and November, 1881, and especially at the time when the said posters or notices of sale were printed, Dr. J. L. Gandy was the editor and manager, and had the control of said newspaper and printing office. That he employed a man to set the type and print the said paper and do such job printing in said office as might be demanded. Also that during the said months the said Albert F. Pool was employed by said Dr. Gandy as a hired man in and about the said printing office. Also that some time previous to the 1st day of November, 1881, the posters or handbill notices of said sale, were printed at said printing office, that Dr. J. L. Gandy read the proof of said posters before they went to press, and that after they were printed, they were by the printer delivered to said Gandy, who took them to his drug store, where some of them were kept on exhibition to the public, and from whence some of them were distributed. And also that about a week before the time fixed for said sale Dr. Gandy wrote, handed into said printing office, and ordered, and caused to be printed and published in said newspaper, a local notice calling attention to the said sale.
It is evident that the jury believed this evidence, and disbelieved that which conflicts with it; and if they did, although, as above stated, from the reading of the bill of exceptions the conflicting evidence would seem to be entitled...
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