Filley v. Walker

• Decision Date: 28 January 1890
• Citation: Filley v. Walker, 28 Neb. 506, 44 N.W. 737 (Neb. 1890)
• Parties: FILLEY v. WALKER ET AL.
• Court: Nebraska Supreme Court

28 Neb. 506

44 N.W. 737

FILLEY

v.WALKER ET AL.

Supreme Court of Nebraska.

Jan. 28, 1890.

Syllabus by the Court.

1. Instructions given and refused examined, and held rightly given and refused, except as to the ninth instruction, which, in so far as it relates to the defendant's set-off of $14, money borrowed of defendant, is overruled as error.

2. An assignment of error based upon the overruling of 22 objections to testimony on trial, no ground of objection to either or any of the rulings being suggested or argued by counsel, is overruled pro forma.

3. The evidence examined, and held to sustain the verdict, except as to the $14 borrowed money and interest.

Error from district court, Gage county; BROADY, Judge.L. W. Colby and R. S. Bibb, for plaintiff in error.

Griggs & Rinaker and Allen Beeson, for defendants in error.

COBB, C. J.

The defendants in error, Perry Walker and Samuel Barker, as partners in business under the name of Walker & Barker, brought suit against the plaintiff in error, Elijah Filley, in the district court of Gage county, to recover the sum of $5,138.18, alleging that in April, 1883, they contracted with the defendant for the purchase and delivery of 354 head of fat cattle, (which was subsequently increased to 366 cattle and 51 head of hogs,) and paid defendant thereon, April 5, 1883, $3,000, and on May 17th following, $1,000, and on June 22d following, $1,000; that of said number of steers the defendant delivered to plaintiffs 235 head, which were paid for in full, over and above former payments to defendant, at the time of delivery; and that the defendant refused and neglected to deliver the balance, 117 head of cattle, and refused to refund to the plaintiffs the amount of said former payments, aggregating $5,000, for which sum, with interest, this suit was brought. For a second cause of action it was alleged that on June 20, 1883, at the time of the delivery of said cattle, there were two steers left with defendant which were not loaded on cars for transportation, for want of room in the car, the steers having been paid for at the price of $138.18, and not subsequently delivered to the plaintiffs upon demand thereof.

The defendant answered in the court below, setting up that on April 5, 1883, he entered into an agreement with said Walker for the sale and delivery of 366 head of cattle and 51 head of hogs, at various places, to-wit: 20 head, at $6.25 per 100 lbs., to be delivered at Wilber on May 8, 1883, obtained from Henry Albert; 37 head, at $6.25 per 100 lbs., to be delivered at Wilber in the first week in May, purchased from William Steinmeyer; 9 head, at $6.25 per 100 lbs., to be delivered at Wilber on May 15, 1883, purchased from G. H. Ross; 38 head, at $6.25 per 100 lbs., to be delivered at Firth on May 15, 1883, purchased from John Yohe; 56 head, at $6.25 per 100 lbs., to be delivered at Firth on June 1, 1883, purchased from W. J. Harms; 50 head, at $6.25 per 100 lbs., to be delivered at Firth on June 15, 1883, purchased from J. M. Messerve; 20 head, at $6.25 per 100 lbs., to be delivered at Liberty on June 1, 1883, purchased of W. J. Dewey; 51 head of hogs, at $6.50 per 100 lbs., to be delivered at Hubbell; 19 head of steers and 1 stag, at $6.25 per 100 lbs., delivered at Hubbell,--both lots on June 1, 1883,--purchased of Robert Kyle; 74 head of steers, at $6.25 per 100 lbs., to be delivered at Kerr's farm, in Gage county, June 1, 1883, purchased of Andrew Kerr; 43 head of steers, at $6.25 per 100 lbs., to be delivered at Filley's farm June 15, 1883,--the defendant's herd of cattle; the plaintiffs paid defendant thereon the sum of $3,000; and that on said April 5, 1883, defendant entered into a further agreement with said Walker, representing the plaintiffs, for the sale and delivery of eight or more car-loads of cattle at various stations on the lines of the railroad, at $6.25 per 100 lbs., on or before the 1st of June following. That accordingly he purchased 150 head of cattle, making over eight car-loads, and offered to deliver them at the following stations of the Burlington & Missouri Railroad: 35 head at Beatrice, purchased of W. W. Barnhouse; 80 head at Hubbell, purchased of George Tuttle; 3 head at Beatrice, purchased of Andrew Kerr. That at the date for delivery, the market price having declined, Walker, on behalf of the plaintiffs, objected to receiving the cattle, and declined to comply with his agreement. It was then mutually agreed by defendant, and by Walker on behalf of the plaintiffs, that defendant should ship the 8 car loads of cattle to Chicago, and deduct from the purchase price, of $6 per 100 lbs., one-third of all losses on sale in Chicago. That accordingly defendant shipped the 153 steers, and sold the same at Chicago, realizing, after deducting the expenses of shipment, the sum of $9,754.27, at weight of 202,560 lbs., costing, at $6 per 100, $12,153.60. That the loss amounted to $2,399.33. Deducting defendant's one-third of the same, the plaintiff's loss was $1,599.54. That on May 18, 1883, Walker paid defendant, on this agreement of compromise, $1,000.

The defendant alleges that in all of the transactions mentioned in his answer the said Perry Walker acted for himself and the said Samuel Barker, as partners, and that on June 21, 1883, defendant loaned said Walker three several sums of money, amounting to $14, to be paid on demand, which is due and unpaid. The defendant alleges that he complied with his agreement by delivering the 20 head of steers purchased of Henry Albert, and the 37 head purchased of William Steinmeyer, and the 9 head purchased of G. H. Ross on May 1, 1883, and was ready and willing to deliver all of said cattle and hogs, but, at the request of plaintiffs, he caused the cattle and hogs to be held beyond the time of delivery agreed upon, as follows: 38 head of steers of Yohe until June 20th following, when they were delivered, the expense of keeping for the time extended being $45, which the plaintiffs were to pay; the 56 head of steers of Harms until June 20th, when they were delivered, the expense of keeping for the time extended being $35.15, which the plaintiffs were to pay; the 50 head of steers from Messerve until June 20th, when they were delivered, the expense of keeping for the time extended being $15, which the plaintiffs were to pay; the 20 head of steers from Dewey until June 21st, when they were delivered, the expense of keeping for the time extended being $10, which the plaintiffs were to pay; the 43 head of cattle of defendant's herd until July 13th, when they were delivered, the expense of keeping for the time extended being $107.50, which the plaintiffs were to pay; the 74 head of cattle of Andrew Kerr until July 13th, when they were delivered, the expense of keeping, for the time extended having been paid by the plaintiffs. That the defendant offered to perform his agreement, and deliver to the plaintiffs all the said cattle, and demanded that the plaintiffs perform their agreement, and receive the cattle, and pay for the same, according to the terms of their agreement, which they refused to do; and thereupon, upon due notice to the plaintiffs, the defendant transported and marketed the said 117 head of cattle, and sold the same in Chicago, Ill., at the highest market price, to-wit, the sum of $7,954.06 net, and with the 117 head of cattle, also at the plaintiff's request, shipped to Chicago and sold the 2 head of steers which theretofore had been returned and left with defendant for keeping at an expense of $15, which the plaintiffs were to pay, and which steers were sold at the highest market price, $114.92 net, and that the time and money necessarily expended in the transportation and sale of the cattle was $100, for which the plaintiffs are indebted to defendant.

The defendant further alleges that the following account stated is a correct statement of the whole of the transactions mentioned, including the number of cattle bought and sold, their weight in the market, and the amount of proceeds received:

+--------------------------------------------------------------------------+
                ¦366 head of cattle, weighing 472,487 lbs., at $6.25            ¦$29,530 43¦
                +---------------------------------------------------------------+----------¦
                ¦51 hogs, weighing 17,925 lbs., at $6.50                        ¦1,165 12  ¦
                +---------------------------------------------------------------+----------¦
                ¦For keeping hogs and cattle during time extended               ¦232 65    ¦
                +---------------------------------------------------------------+----------¦
                ¦Money loaned                                                   ¦14 00     ¦
                +---------------------------------------------------------------+----------¦
                ¦Two-thirds loss on 150 head of cattle, (8 car-loads)           ¦1,599 54  ¦
                +---------------------------------------------------------------+----------¦
                ¦Money and services of Filley in shipment and sale of 119 cattle¦100 00    ¦
                +---------------------------------------------------------------+----------¦
                ¦Keeping and caring for 2 steers                                ¦15 00     ¦
                +---------------------------------------------------------------+----------¦
                ¦Total                                                          ¦$32,656 74¦
                +--------------------------------------------------------------------------+
                

CREDITS.

+-------------------------------------------------------------+
                ¦1883.                                  ¦          ¦          ¦
                +---------------------------------------+----------+----------¦
                ¦April 5th, cash                        ¦$ 3,000 00¦          ¦
                +---------------------------------------+----------+----------¦
                ¦May 18th, cash                         ¦5,000 00  ¦          ¦
                +---------------------------------------+----------+----------¦
                ¦May 18th, cash                         ¦1,000 00  ¦          ¦
                +---------------------------------------+----------+----------¦
                ¦June 19th, cash

...