Fike v. Ott
| Decision Date | 18 April 1906 |
| Docket Number | 14,244 |
| Citation | 107 N.W. 774,76 Neb. 439 |
| Parties | DANIEL M. FIKE v. MALINDA OTT |
| Court | Nebraska Supreme Court |
ERROR to the district court for Thayer county: LESLIE G. HURD JUDGE. Affirmed.
AFFIRMED.
V. O Rewick and Robert J. Sloan, for plaintiff in error.
M. S Gray and Charles H. Sloan, contra.
In her petition the plaintiff alleges that she, with her husband, Jenores T. Ott, executed their warranty deed to certain real estate to one John C. Saylor for an agreed price of $ 320, which deed was placed in the hands of one Whipkey to be delivered to Saylor upon his payment to Whipkey of $ 320 for plaintiff; that Saylor paid the money and got the deed; that about March 5 the defendant fraudulently induced Whipkey to pay the money to him without authority from plaintiff and fraudulently converted it to his own use and benefit, and though often demanded refused repayment, and prays judgment for $ 320, and interest at 7 per cent. from March 5, 1901. Demurrer to the petition was overruled, whereupon the defendant answered, denying each of the allegations of the petition, and as an affirmative defense alleged in substance: That, while the legal title to the land at the date of plaintiff's conveyance was in her, she held it in trust for the use of the defendant who had paid the purchase price, and that the conveyance thereof by the plaintiff's said deed to Saylor was in pursuance of an agreement between himself and the plaintiff's husband to the effect that the latter should procure a purchaser for the land and effect a sale thereof, the proceeds to be paid to the defendant; that after the sale of the premises to Saylor the matters in difference between the plaintiff and her husband and the defendant were submitted to arbitration, that an award was duly made, and the amount awarded the plaintiff was received and accepted by her in full payment of all matters in difference, including the claim in suit. The reply, with an amendment thereto, is voluminous. It contains much that is redundant and immaterial. It was filed over the defendant's objection, and was afterwards assailed by motions, which were overruled by the court. In its charge to the jury the court very properly reduced the reply, as amended, to a single sentence by an instruction in these words: "The plaintiff in reply denies the allegations of the answer, especially the arbitration or payment to her of any proceeds, or that there ever was a settlement, or that she authorized any one to receive same for her or did receive anything for her land." The jury found for the plaintiff, and judgment went accordingly. The defendant seeks to reverse the judgment by proceedings in error instituted in April, 1905.
It is first claimed that the court erred in overruling the demurrer to the petition. The argument in this behalf is based on the omission of the plaintiff to allege that she was the owner of the land conveyed and for which the consideration which came into the defendant's hands was paid. Every material allegation of her petition stands admitted for the purposes of the demurrer. Those allegations show that the money was left with a third party for the use of the plaintiff. It was her money, and whether she had title to the land or gave value received for the money does not concern the defendant whose relation to the transaction, so far as appears from the petition, was that of a mere intermeddler, who wrongfully obtained possession of a sum of money belonging to the plaintiff.
There are assignments based on the rulings of the court permitting the plaintiff to amend her reply, and on the motions made by the defendant assailing the reply, as amended. As before stated, the reply, as amended, contained much that was superfluous and immaterial. The objections covered by the assignments under consideration are grounded on the superfluous and immaterial matter contained in the reply, as amended, and which were eliminated, as we have seen, by the instructions of the court. On this state of the record, we are unable to see, nor has any attempt been made to point out, how the defendant was prejudiced by the rulings under consideration.
It is next contended that the court erred in admitting a copy of the conveyance mentioned in the petition in evidence over defendant's objection that it was not the best evidence, and that a sufficient foundation had not been laid for the admission of secondary evidence. It is not claimed that the defendant was prejudiced by this evidence in any way, save that by reason of the recital therein as to the amount of the consideration it tended to show the consideration actually paid by Saylor for the conveyance in question. This might have been prejudicial had there been any dispute as to the consideration named in the deed. But there was none. One of defendant's own witnesses testified to the consideration named in the deed, placing it at precisely the same sum as that shown by the copy...
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