Connolly v. Edgerton

• Decision Date: 22 September 1887
• Citation: 34 N.W. 76,22 Neb. 82
• Parties: PETER CONNELLY AND PATRICK DUFFY, PLAINTIFFS IN ERROR, v. CHARLES W. EDGERTON AND DAVID N. MILLER, DEFENDANTS IN ERROR
• Court: Nebraska Supreme Court

34 N.W. 76

22 Neb. 82

PETER CONNELLY AND PATRICK DUFFY, PLAINTIFFS IN ERROR, v. CHARLES W. EDGERTON AND DAVID N. MILLER, DEFENDANTS IN ERROR

Supreme Court of Nebraska

September 22, 1887

ERROR to the district court for Douglas county. Tried below before WAKELEY, J.

AFFIRMED.

J. J O'Connor and Thurston & Hall, for plaintiffs in error.

Redick & Redick, Howard B. Smith, and Charles Ogden, for defendants in error.

OPINION

REESE, J.

This was an action in replevin instituted by plaintiffs in error (who claim the possession of the property in dispute, by virtue of a chattel mortgage) against defendants in error (a constable and the sheriff of Douglas county), who also claimed the possession, but by virtue of the levy of certain attachments upon it as the property of the mortgagor. The contest is between the mortgagees and creditors--the former asserting the bona fides of their mortgage, the latter contending that it is fraudulent. The decision of this question of fact was peculiarly within the province of the trial jury, and we are unable to see that it should be disturbed.

The actual indebtedness at the time of the execution of the mortgage was about $ 1,800, while the mortgage was given to secure two notes--one for $ 400, due in ninety days from its date, and one for $ 7,600, due in five years from date, each drawing interest at the rate of ten per cent per annum, the former bearing date August 13, the latter August 16, 1883. The testimony in the case is quite voluminous, and we can see no good purpose to be subserved by discussing it at length. While it is true that the fact that the mortgage was given for a larger amount than the actual indebtedness is not by any means conclusive evidence of fraud, and especially so when the explanation is sought to be made that the excess was for the purpose of covering future advances and credits to be made by the mortgagee to the mortgagor, yet such an overstatement of the debt may be said to indicate fraud, and the question then becomes one for the trial jury to decide, under all the circumstances of the case and the instructions of the court. Jones on Chattel Mortgages, § 92, and cases there cited. In connection with the fact of the amount named in the mortgage and notes being largely in excess of the actual indebtedness, the further fact that the mortgagor was permitted to retain possession of the mortgaged property and sell the same in the usual course of trade (the property being the fixtures, furniture, and stock of liquors in a saloon), together with the explanation that all the proceeds of such sale were to be applied to the payment of the indebtedness secured by the mortgage, was submitted to the jury under proper instructions. The whole question of fraudulent intent on the part of the parties to the mortgage was before the jury. Their verdict must be final, if no other of the alleged errors occurring on the trial are found to call for a reversal of the judgment.

It was shown by the testimony of Peter Connelly, one of the plaintiffs, that he was in the wholesale liquor trade. He was then asked to "state whether or not it is not the custom among wholesale liquor men to do this kind of business," referring to taking the notes and mortgage for a larger amount than the actual indebtedness, for the purpose of covering future advances. This question was objected to upon the usual grounds, and the objection was sustained, to which an exception was taken, and the ruling of the court is now assigned for error. While we think the ruling of the court was correct, yet, under the repeated decisions of this court no error can be successfully assigned in such case without an offer of proof of the facts sought to be established. Matthews v. The State, 19 Neb. 330, 27 N.W. 234. Masters v. Marsh, 19 Neb. 458. Lipscomb v. Lyon, 19 Neb. 511. No such offer was made.

One Stubendorf, who was one of the appraisers in the attachment proceeding, which was about one month prior to the institution of this suit, was a witness, and was asked as to the value of the property at the time he examined it and made the appraisement. Over the objection of plaintiff he was permitted to testify. No objection is made as to his competency. It being shown that the property remained in the same condition from time of the appraisement until the seizure under the replevin proceeding--the testimony was admissible as tending to prove the value at the time of the replevin. It was for the jury to weigh and compare with all the other testimony upon the same subject, and while, possibly, not entitled to as much credence as if the estimate had been made on the date of the levy, yet it was competent.

Objection is made to the ruling of the court in allowing the witness, Orchard, to testify as to the value of linoleum. This objection is based upon the alleged fact that no such property had been levied upon, and that the effect of the testimony was to increase the value of the property in dispute, in the estimation of the jury, when in fact there was no such item in dispute. The linoleum referred to was the matting or floor covering for the saloon, purchased by the mortgagor of the witness. It very clearly appears that the name given by the witness referred to the property in dispute, but which by the other witnesses was denominated oil cloth. The testimony clearly referred to the same article, and was therefore properly admitted.

One Charles Little was called as a witness, on the part of the defense, for the purpose of proving the value of the fixtures in the saloon, they being a part of the property in dispute. He testified that he had been engaged in the saloon business ten or twelve years, had purchased the property spoken of, and was acquainted with their values, and testified to the same. On cross-examination he was asked, if in giving his estimate of the values he did not base it on what he would be willing to give for them. His answer was, he did. In view of this answer, counsel moved to strike the whole of the testimony of the witness from the record. The motion was overruled, and properly so. The witness had shown himself to be a competent one, having experience and knowledge of the matters concerning which he testified. The single answer made might serve, in some degree, to diminish the weight of his testimony, but it could not render it inadmissible.

Objection was made to...