Fitzgerald v. Meyer

• Decision Date: 09 May 1893
• Docket Number: 5072
• Citation: 55 N.W. 296,37 Neb. 50
• Parties: JOHN FITZGERALD v. AXEL MEYER
• Court: Nebraska Supreme Court

55 N.W. 296

37 Neb. 50

JOHN FITZGERALD v. AXEL MEYER

No. 5072

Supreme Court of Nebraska

May 9, 1893

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

AFFIRMED.

Breckenridge Breckenridge & Crofoot, for plaintiff in error.

Connell & Ives, contra.

OPINION

IRVINE, C.

This is an action of replevin for a pair of mules, by the plaintiff in error against the defendant in error. The case has once before been in this court, and is reported in 25 Neb. 77 where a general statement of the case appears. A new trial in the district court resulted in a verdict in favor of the defendant.

One of the assignments of error is the refusal of the court to give certain instructions asked by the plaintiff, but the substance of these instructions was given by the court of its own motion and plaintiff in error in his brief does not urge this assignment.

Under the assignments that the verdict was not sustained by the evidence, that it was contrary to law and contrary to the instructions, plaintiff in error urges the insufficiency of the evidence. No complaint is made of the general effect of the instructions given, and they certainly state the law as favorably to the plaintiff in error as could be asked.

The plaintiff, in his petition, claims the property under a chattel mortgage. This mortgage was given in January, 1885 and in May following the mortgagor executed to the plaintiff a bill of sale covering this and other property. It seems to have been urged by the defendant below that the transfer by the bill of sale abrogated the mortgage by way of merger, and the jury was fully instructed upon the law relating to this issue. No change of possession followed either transfer, and the burden of proof was upon the plaintiff to establish bona fides. The only evidence offered for this purpose was that of plaintiff's agent, who testified that the mortgagor was indebted to plaintiff at the time the mortgage was made and that the mortgage was given to secure such indebtedness. The amount of the indebtedness is not disclosed, nor is its source, nor were any of the circumstances attending the execution of the mortgage elicited, or sought to be elicited. Whether this testimony was sufficient to overcome the presumption of fraud in a chattel mortgage not accompanied by change of possession was for the jury to determine, and we cannot say that upon such meagre evidence it was bound to determine...