Davis v. Getchell

• Decision Date: 16 September 1891
• Citation: 32 Neb. 792,49 N.W. 776
• Parties: DAVIS, SHERIFF, v. GETCHELL.
• Court: Nebraska Supreme Court

32 Neb. 792

49 N.W. 776

DAVIS, SHERIFF,

v.GETCHELL.

Supreme Court of Nebraska.

Sept. 16, 1891.

Syllabus by the Court.

1. An instruction requested, by which the jury were told that, if they should find from the evidence that, at the time the stock of goods in controversy was sold by T. K. H. to this plaintiff, said stock was sold for a sum much less than the real value of the same, such fact, if it be a fact, would be a strong badge of fraud, held rightly refused.

2. Instructions given considered, and held rightly given.

3. An assignment of error in a petition in error in the following language: “Errors of law occurring during the trial in the admission and rejection of evidence, which will more fully appear by reference to the bill of exceptions filed herewith,”--criticised and disapproved.

4. An offer of evidence not containing sufficient to show its materiality to any one of the issues or points in controversy in the suit, but containing substantive matter, irrelevant and inapplicable to any of such issues or points in controversy, held properly rejected.

5. Evidence held to sustain the verdict and judgment.

Error to district court, Madison county; POWERS, Judge.

Action in replevin by J. W. Getchell against George Davis, sheriff. Verdict and judgment for plaintiff. Defendant brings error. Affirmed.D. A. Holmes, for plaintiff in error.

Allen, Robinson & Reed, for defendant in error.

COBB, C. J.

George Davis, the plaintiff in error, was the sheriff of Madison county. J. W. Getchell, defendant in error, is a merchant of Neligh. Thomas K. Hansen was the owner of a small stock of goods at Burnett. On the 7th day of July, 1887, J. W. Getchell purchased the said stock of goods from Hansen, and took possession thereof. A few days thereafter several writs of attachment against Hansen were sworn out, issued by the clerk of the district court of Madison county, and placed in the hands of George Davis, as sheriff, who thereupon levied on the said stock of goods by virtue of said writs of attachment; and on the 14th day of July of said year this action of replevin was commenced by Getchell against Davis, as sheriff, and the whole of said goods replevied. The petition in replevin is in the usual form, and the answer is a general denial. There was a trial to a jury, with a verdict for the plaintiff, with nominal damages. The cause is brought to this court on error with six assignments of error: (1) That the court erred in refusing to give the instructions to the jury asked for by defendant; (2) in giving instructions numbered 1 and 2 asked for by plaintiff; (3) in giving instructions numbered 3 and 6 on its own motion; (4) that the court erred in the rejection of evidence pointed out in the bill of exceptions; (5) that the verdict and judgment are contrary to law; (6) that the verdict and judgment are contrary to the weight of the evidence.

Upon the trial, the plaintiff, being called as a witness in his own behalf, testified to his ownership of the said goods, and that the same were in his possession when seized and levied upon by the defendant; that he resided in Neligh, where he had been engaged in the mercantile trade for the last 14 years. Upon his cross-examination by defendant he testified that he bought and paid for the said stock of goods. That part of them he bought from Thomas K. Hansen, and part from different wholesale dealers. That about half of it he bought from Hansen. That he paid him therefor about $400, which he gave a check for; and made said purchase, he thinks, on the 7th day of July, about 4 or 5 o'clock in the afternoon. That said purchase was made in the Diltz store building at Burnett. That he first saw Mr. Hansen on that day at Neligh. That it was in the forenoon, where he had a conversation with him about buying the stock. That that was the first conversation he had with Hansen about buying the stock. That Hansen first asked him whether he thought of putting in a stock at Burnett. That plaintiff told Hansen that he had thought some of going there if he could get a building, and Hansen asked plaintiff if he could not sell him his stock. That plaintiff replied that he did not want to buy any broken stock. Hansen then wanted to know if plaintiff would not come down and look it over, and plaintiff said that he would. Hansen asked “if I would come down that day and look it over;” and plaintiff said that he would, if trade was not too brisk, “and that I would know by 10 or 12 o'clock.” That plaintiff went down to Burnett that afternoon, it being about 11 or 12 miles distant. That he got down there, and made the trade with Hansen about 4 o'clock; might have been later, possibly 6 o'clock. Plaintiff paid Hansen $440 for the stock,--$400 in a check, and Hansen was indebted to him about $40 for goods. The check was on the Oakdale Bank. That the plaintiff told his men to invoice the stock after he bought it. Thinks his men commenced invoicing the next day. That plaintiff was down there while they were invoicing. Does not think they ever completed it. To the question, “You made no inquiry as to the amount of Hansen's indebtedness at that time?” he answered, “I think not, only from him.” To the question, “What did he tell you at that time as to the amount of his indebtedness?” he answer d, “I think that he said he owed Meyer & Schurman $200 or $300.” That he did not tell him that he owed any one else. Thinks that he asked Mr. Meminger whether there were any incumbrances against the place, and that he replied that there was not. Cannot say whether he told him of any indebtedness or not. That Mr. Meminger did not tell him that he had some sight drafts for collection against Hansen. That he does not remember whether it was before or after the consummation of the trade that he had this conversation with Mr. Meminger. To the question, “You knew that he was indebted to a considerable extent before you bought the goods, did you not?” he answered, “No, sir; I did not.” To the question, “Did you not tell Mr. Meminger, just about the time that that sale was completed, either immediately before or immediately after, on the same day, that, so far as his creditors were concerned, you had nothing to do with them; that you had bought the stock, and you had nothing to do with them?”--he answered, “I have no recollection of any such conversation;” that he was pretty positive that he did not, but he might have made it afterwards.

The defendant called as a witness in his behalf Thomas K. Hansen, who testified that he resides at Burnett. Was formerly engaged in the mercantile business there. That he is the Hansen who sold out to Mr. Getchell in July, 1887. Remembers the date of the sale. Thinks it was on the 7th day of July. To the question how he came to make the sale, and the circumstances with reference to that sale, he answered: “I received a letter from Meyer & Schurman three or four days before I went to Neligh, for me to come down there, and take my books along with me, to make a settlement. Their man, Mauritius, was there a day or two before, and I told him that I would not go. I had given him $200,--all the money that I had; and he talked about taking a mortgage on a piece of land that I had; but I could not give a mortgage, for it was a timber claim. I thought if I could sell out I could pay all my indebtedness. I had my timber claim, house and lot, two horses, and a buggy, and two cows; and I had about $1,000 book-accounts; and I thought that I could straighten it all out by selling out. I did not want to have any trouble,--a general bust-up, or anything of that kind; and I understood that Mr. Getchell was going to put in a branch store at Burnett. He says that he was thinking some of doing so, and I says, ‘Come up, and I will sell out my stock to you.’ I says I would like him to look at the stock, or something like that. I says, ‘If you will come up, I would like you to look over the stock;’ and I think that it was about 1 or 2 o'clock he came up, and a short time after that he made me an offer, and I took it.” That witness did not make him any offer up there at Neligh. To the question, “Did you not first ask him $1,000 for that stock?” he answered, “I guess not; I might have asked him $1,000 for it; but I didn't think he was foolish enough to give that amount for it.” That he didn't tell Getchell that he was anxious to sell out. That witness' indebtedness to Meyer & Schurman was about $400. That at the time witness was burnt out he owed them about $900, and had paid them $700. That was some months before. Witness had bought other goods of them, and paid them about $200 every month since that. To the question, “Did you not tell Mr. Getchell anything about it,--how much you owed them?” he answered, “I do not remember.” To the question, “Did you tell him how much you owed Turner & Jay?”he answered that he did not. To the question, “Did you tell him how much you owed Jandt & Tomkins?” he answered, “No, sir; I did not owe them anything.” To the question, “Did you tell him that you owed any other house?” he answered, “No, sir; I don't believe that he asked me.” Did not ask him anything about it. To the question, “How much did he pay you for the stock of goods?” he answered: “$400, and I had got a suit of clothes, and a little more. Well, it was about $445 or $450.” To the question, “How long had it been since your fire?” he answered, “The fire was on the 7th day of January, and the sale was on the 7th day of July.” To the several questions put by counsel for the defendant he stated substantially that about the time he was burnt out he kept dry goods, but did not keep them in the store after the fire, but allowed the stock to run down gradually. That there might have been a piece or two of dry goods in the store. That he had some boots and shoes in stock, and some hats and caps. Thinks he bought a few hats and caps after the fire, “and a little boots and shoes during the summer.” That he didn't...