Chitwood Packing Company v. Warner

• Decision Date: 10 January 1941
• Docket Number: 30918
• Citation: 295 N.W. 882,138 Neb. 800
• Parties: CHITWOOD PACKING COMPANY, APPELLEE, v. MABEL WARNER ET AL., APPELLANTS
• Court: Nebraska Supreme Court

295 N.W. 882

138 Neb. 800

CHITWOOD PACKING COMPANY, APPELLEE, v. MABEL WARNER ET AL., APPELLANTS

No. 30918

Supreme Court of Nebraska

January 10, 1941

APPEAL from the district court for Dawson county: ISAAC J. NISLEY JUDGE. Affirmed.

AFFIRMED.

Syllabus by the Court.

Evidence examined, and held to sustain the findings of the trial court.

Appeal from District Court, Dawson County; Nisley, Judge.

Action by the Chitwood Packing Company against Mabel Warner and Lewis Warner, doing business as the Outlaw Food Center wherein the plaintiff recovered a judgment which was assigned to Delva Russell, who assigned the judgment to R. E. Bannister. Execution was issued on the judgment. The defendants' motion to recall and quash the execution was overruled, and the defendants appealed. Lewis Warner died, and the proceeding was revived in the name of Mabel Warner, special administratrix of the estate of Lewis Warner, deceased.

Affirmed.

Dryden, Dryden & Jensen, for appellants.

John M. Neff, Jr., and R. E. Bannister, contra.

Heard before SIMMONS, C. J., ROSE, EBERLY, PAINE and YEAGER, JJ., and ELDRED, District Judge.

OPINION

PAINE, J.

Plaintiff, a wholesale packing corporation, on January 12, 1938, recovered a judgment in the district court, in the amount of $ 358.54, interest and costs, against defendants, doing business as Outlaw Food Center, and operating a retail grocery store. Plaintiff assigned this judgment to one Delva Russell on January 24, 1938, for a valuable consideration. Delva Russell assigned the judgment to one R. E. Bannister for the purpose of collecting and enforcing the same, and for services rendered and to be performed by him. Execution was issued on the judgment.

Defendants moved to recall and quash the execution, for the reason that Delva Russell was acting as agent for defendants when she satisfied the judgment by using funds of the defendants and taking an assignment thereof to herself, when she had an understanding with defendants that the judgment was to be released; that Bannister, as assignee of Delva Russell, had knowledge of the facts, and is bound by all the equities in said judgment in favor of defendants.

The motion to quash the execution was overruled. From this order defendants appeal, contending that the court erred, first, in finding that no fiduciary relationship existed as between Delva Russell and the defendants; second, in finding that the judgment upon which the execution was based had not been paid.

Delva Russell lived with defendants and worked for them since 1932 in their home and store. She owned some property, and assisted with the collection of rents from real estate and apartments owned by defendants. An agreement was made to satisfy the judgment against the defendants heretofore set out. Mrs. Russell volunteered to, and did, procure a loan from a finance company, the loan being in the amount of $ 216, she giving as security a note and chattel mortgage on the household goods owned by defendants, and...