Carpenter v. Lingenfelter

• Decision Date: 20 November 1894
• Docket Number: 5655
• Citation: 60 N.W. 1022,42 Neb. 728
• Parties: ELMER CARPENTER ET AL. v. MARY E. LINGENFELTER ET AL
• Court: Nebraska Supreme Court

60 N.W. 1022

42 Neb. 728

ELMER CARPENTER ET AL. v. MARY E. LINGENFELTER ET AL

No. 5655

Supreme Court of Nebraska

November 20, 1894

ERROR from the district court of Pierce county. Tried below before ALLEN, J.

REVERSED AND REMANDED.

O. J Frost, W. W. Quivey, and Wigton & Whitham, for plaintiffs in error:

The court erred in giving the sixth and seventh instructions on its own motion and in refusing the first instruction requested by plaintiffs. (Cobbey, Replevin, secs. 395, 396; Baker v. Meisch, 29 Neb. 227; Hungerford v Redford, 29 Wis. 345; Wells, Replevin, secs. 85, 88; Gillespie v. Sawyer, 15 Neb. 536; Fremont Ferry & Bridge Co. v. Dodge County, 6 Neb. 25; Roy v McPherson, 11 Neb. 200; State v. Graham, 21 Neb. 329.)

In replevin, where a recovery of the value of the property is sought, the measure of recovery is the value before the property was improved by defendants' labor and skill. (Single v. Schneider, 30 Wis. 570; Hungerford v. Redford, 29 Wis. 345.)

G. T. Kelley, J. B. Smith, and Frick & Dolezal, contra.

OPINION

The facts are stated in the opinion.

NORVAL, C. J.

This is an action in replevin by Elmer Carpenter, John Carpenter, and I. W. Peed against Mary E. Lingenfelter and D. C Lingenfelter, to recover the possession of 157 tons of hay. The property was taken under the writ, and possession thereof delivered to the plaintiffs. The defendants recovered a verdict and judgment for the value of the hay in the sum of $ 350, and $ 5 damages for withholding possession. The plaintiffs prosecute a petition in error.

The testimony introduced by the plaintiffs tends to show that one Hugh Spencer, who was the owner of the southwest quarter of section 28, township 27, range 3, in Pierce county, by his authorized agent, R. J. Spencer, rented the same to the plaintiff, I. W. Peed, for the year 1889, at a rental of $ 25; that in April, 1890, R. J. Spencer had a conversation with Peed about renting him the land for that year, in which conversation the former told the latter that if he would pay the taxes on the quarter section he could have the use of the land for 1890, and Peed replied that he would take the land if he could keep the cattle off; that subsequently Peed made a contract with one Kidd, by which the latter agreed to keep the cattle off the land; that Peed also paid the taxes about October 1, the tax receipt being delivered to R. J. Spencer at his special request; that in June or July, 1890, Peed sublet the land to the Carpenters, they agreeing to cut the grass growing thereon, stack and bale the hay, and deliver to Peed one-half thereof on board the cars; that the Carpenters commenced cutting the grass and making the hay in controversy during the latter part of August, and had it all in stack by September 25th; that in November following, after they had baled a part of the hay, the defendants drove the plaintiffs off the land and took possession of the hay,--that which was baled, as well as the portion which was then in the stack. It further appears from the testimony that R. J. Spencer rented the land upon which the hay was made, on or about the 21st day of August, 1890, to the defendant Mary E. Lingenfelter. There is likewise in the bill of exceptions evidence tending to establish that Peed refused to take the land for 1890, upon the terms proposed by Mr. Spencer, and that although the defendants knew the Carpenters were cutting the grass, and making the hay early in September, no claim to the hay was made by the defendants until after it had been all stacked.

The first assignment of error is based upon the ruling of the trial court in admitting the evidence of D. C. Lingenfelter, to the effect that upon the trial in the county court of Pierce county of the case of the State v. Lingenfelter, Elmer Carpenter, one of the plaintiffs herein, testified that he did not know who was the owner of the southwest quarter of section 28, township 27, range 3. This evidence was offered and admitted for the purpose of impeachment, by showing that Mr. Carpenter had testified differently in the county court from what his testimony was on the trial of this case concerning his knowledge of the ownership of the land upon which the hay in dispute was made. Whether Mr. Carpenter knew, or did not know, who owned the land was not relevant to any issue in the case, since it in no manner tended to prove who had the right of possession to the property in controversy at the commencement of the action. The Carpenters claim the right to the hay as sublessees from Mr. Peed, who it is insisted is the tenant of Spencer, the owner of the land. The defendant Mary E. Lingenfelter claims under a lease from Spencer. One of the main points in the case, and the one to which the testimony was largely directed, was whether Spencer had rented the land to Peed for the year 1890, and the testimony above referred to sheds no light whatever upon the subject. It is only as to matters relevant to some issue involved in a case that a witness can be contradicted for the purpose of impeachment. This rule is too well settled to require the citation of authorities to sustain it. Another familiar rule of evidence is that when a party is permitted on cross-examination to ask a witness an immaterial question, he is bound by the evidence so elicited, and cannot rebut it. The statement made by the witness which it was sought to contradict by other witnesses was brought out by the defendants upon cross-examination. It follows that it was error to allow the defendants to introduce evidence to impeach Elmer Carpenter upon a matter collateral to the issue involved. For the reasons stated above it was likewise error to admit immaterial evidence offered by the defendants for the purpose of impeaching the witness John Carpenter.

Exceptions were taken to the giving of the sixth and seventh paragraphs of the court's charge to the jury, and in the refusing to give plaintiffs' instruction No. 1. For convenience these instructions will be considered by us at the same time. The sixth and seventh instructions given by the court on its own motion are as follows:

"6. To constitute a valid contract the parties thereto must have agreed upon the same thing, and in the same sense, and must not have left the matter open for future agreement. If you find from the evidence in this case that I. W. Peed and R. J Spencer made and entered into a contract by the terms of which Peed became the lessee of the land described in the petition for the purpose of the hay and grass grown thereon in the year 1890, and thereafter Peed and the plaintiffs, John and Elmer Carpenter, made a contract by which the latter were to cut and bale the hay and grass growing on the said land for that year, and the parties to such agreement were to own the same jointly, and in pursuance to such last named contract the plaintiffs, John and Elmer Carpenter, did cut and bale said hay and grass, then the plaintiffs would be the owners of the hay and entitled to its possession, and you should so find by your verdict. If, however, Peed did not contract for the land for the year 1890, or the hay and grass grown thereon that year, with R. J. Spencer, or any other person having authority to contract with reference thereto, then any agreement that Peed may have made with John and Elmer Carpenter with reference to the hay and grass grown on said land for that year would not confer upon the plaintiffs any title to, or right of possession of, the hay, and your verdict should be for the defendants.

"7. If you find from the...