Burlingim v. Bader

• Decision Date: 22 June 1895
• Parties: BURLINGIM v. BADER
• Court: Nebraska Supreme Court

45 Neb. 673

63 N.W. 919

BURLINGIM

v.BADER

Supreme Court of Nebraska.

June 22, 1895.

Syllabus by the Court.

1. An instruction is erroneous which requires a jury to base its verdict on a matter which forms only a portion of the evidence bearing on the principal issue, and disregards the determination of that issue itself.

2. Such error is not cured by other instructions stating the issue correctly.

Error to district court, Seward county, Miller, Judge.

Action by William Bader against S. C. Burlingim and another for conspiracy to defraud. There was a judgment for plaintiff against defendant Burlingim, who brings error. Reversed.Ed. P. Smith and E. C. Biggs, for plaintiff in error.

Norval Bros. & Lowley, for defendant in error.

IRVINE, C.

Mary Unsicker was the owner of a quarter section of land, and also of an 80-acre tract in Seward county. There were upon both of these tracts incumbrances as follows: (1) A mortgage from Mary Unsicker and husband to the Equitable Trust Company for $2,500. (2) Another mortgage between the same parties for $250. (3) A mortgage to Burlingim for $1,320, which last mortgage had been assigned to Claudius Jones. In December, 1887, Bader and Mary Unsicker made a contract, whereby Bader was to purchase the 80-acre tract for $1,650. Fifty dollars was to be paid in cash, $1,000 to be paid in the following March. The remainder of the purchase money the parties contemplated should be raised by a mortgage to be placed on the 80-acre tract for $600. The 80 acres was to be relieved from the burden of the Unsicker mortgages, and for this purpose it was contemplated that the $1,600 received from Bader should be applied toward the payment of these mortgages, and that the Unsickers should obtain a new loan on the quarter section remaining in them, wherewith to discharge the remainder of the old incumbrances. Bader paid the $50 and the $1,000, and executed a note and mortgage to one Upton for the $600, but the transaction was not otherwise completed. A suit was brought to foreclose the old mortgages. They were foreclosed, and the land, including the 80-acre tract, sold to Harry T. Jones, son of Claudius Jones. The foregoing facts are unquestioned. On every other point in the case there is a conflict. Bader brought this action against Burlingim and Harry T. Jones, charging the foregoing facts, and charging in addition thereto that he had paid the $1,000 to Burlingim under an agreement on Burlingim's part that he would make the loan of $600, and that with the money so obtained he would procure the release of the old mortgages; that Burlingim failed to perform his agreement, but instead thereof conspired with Harry T. Jones to appropriate the $1,000, procure a foreclosure of the mortgages, and enable Jones to get the land. On the trial, the court granted a peremptory instruction to find in favor of the defendant Jones, and the judgment rendered upon this verdict is not questioned. Therefore the charge of conspiracy is eliminated...