Fitzgerald v. Meyer

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

37 Neb. 50

55 N.W. 296

FITZGERALD

v.MEYER.

Supreme Court of Nebraska.

May 9, 1893.

Syllabus by the Court.

1. Where the burden of proof is upon the plaintiff to establish the bona fides of a chattel mortgage whereunder he claims, a verdict in favor of defendant will not be set aside on the ground that the verdict is not sustained by the evidence, unless the evidence offered by plaintiff is of a clear and convincing character.

2. A judgment will not be disturbed because of an instruction submitting to the jury an issue not within the pleadings, where the only effect of such an instruction must have been in favor of the party complaining.

Commissioners' decision. Error to district court, Douglas county; Ferguson, Judge.

Action by John Fitzgerald against Axel Meyer. Judgment for defendant. Plaintiff brings error. Affirmed.Breckenridge, Breckenridge & Crofoot, for plaintiff in error.

Connell & Ives, for defendant in error.

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, 41 N. W. Rep. 123, 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 raised upon 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...