Drexel v. Murphy

• Decision Date: 09 November 1899
• Docket Number: 9,009
• Citation: 80 N.W. 813,59 Neb. 210
• Parties: JOHN C. DREXEL, SHERIFF, ET AL. v. ANDREW MURPHY
• Court: Nebraska Supreme Court

80 N.W. 813

59 Neb. 210

JOHN C. DREXEL, SHERIFF, ET AL. v. ANDREW MURPHY

No. 9,009

Supreme Court of Nebraska

November 9, 1899

ERROR from the district court of Douglas county. Tried below before SLABAUGH, J. Reversed.

REVERSED AND REMANDED.

B. N Robertson, for plaintiffs in error.

Ed P Smith and James B. Sheean, contra.

OPINION

NORVAL, J.

On October 21, 1893, one William Snyder was engaged in the manufacture and sale of buggies in the city of Omaha, and on that day he executed and delivered to Andrew Murphy a chattel mortgage to secure a note of $ 1,400. The chattels were described in the mortgage as follows: "A full set of blacksmith's tools; 9 phaeton bodies; 9 buggy bodies; all new wheels, in number about 25; 5 buggy poles; all shafts; all bar iron, bolts, hub bands, screws, top propnuts and all other iron materials; all lumber and wood furnishings, including white wood and hickory, and all spokes and rims; all buggy bows; 24 old wheels; and all leather, and all trimming materials; platform carriage, under way of construction; 3 stoves and pipe; all paints, paint tools and materials, and all other tools, materials, furnishings, and unfinished work now in the place of business of said Snyder at 1320, 1322, and 1324 Harney street, corner of Fourteenth street, in the city of Omaha, Nebraska." Murphy was at the time liable on certain notes he had signed as surety for Snyder, and the mortgage was given to secure Murphy against the payment of said notes and a certain stay bond he had signed for Snyder. After the mortgage was executed Murphy paid a portion of said indebtedness of Snyder, and the latter completed one of the phaetons in the process of construction, which he sold or traded to one John W. Paul, the arrangement between them being that Paul was to deliver to Snyder, as part payment, an old buggy, valued at $ 150, and pay $ 200 in cash. The old buggy was delivered to Snyder as agreed, and the latter subsequently sold the same, with Murphy's consent, and applied the proceeds on the indebtedness the mortgage was given to secure. For the balance of the purchase price Paul delivered to Snyder a note which the former held against a third party, on which the latter was to raise the $ 200, but Snyder being unable to negotiate the note it was returned to Paul, who retained the same. Subsequently Snyder went to Paul and informed him that he was in trouble on account of his having disposed of a buggy which he had mortgaged to Murphy, and begged Paul to make him a check for $ 100 to give to Murphy, stating that Paul could pay the remaining $ 100 at his own convenience. Paul gave Snyder the check for $ 100 as requested. The latter had authority from Murphy to sell the mortgaged chattels, and apply the proceeds upon the mortgage indebtedness. A portion of the property was sold, and the money realized therefrom was so applied. The defendant John C. Drexel, as sheriff, by his deputy, levied an execution upon said phaeton as the property of said Paul. Murphy thereupon brought replevin to recover the property, before a justice of the peace, where he obtained judgment. On appeal to the district court by the other party a judgment again was rendered in Murphy's favor.

On the trial the defendant sought to prove by the witness, W. R Drummond, that the description of the chattels contained in the mortgage did not include a finished phaeton, which offered...