Fitzsimons v. Frey, No. 32769

• Court: Supreme Court of Nebraska
• Writing for the Court: Heard before SIMMONS; MESSMORE
• Citation: 153 Neb. 124,43 N.W.2d 531
• Parties: FITZSIMONS v. FREY et al.
• Decision Date: 19 July 1950
• Docket Number: No. 32769

Page 531

43 N.W.2d 531 153 Neb. 124 FITZSIMONS
v.
FREY et al. No. 32769. Supreme Court of Nebraska. July 19, 1950.

Page 532

Syllabus by the Court.

1. The word 'furniture' has been defined to include movable articles including articles of ornamentation such as a pair of branch candlesticks or candelabra.

2. Language used in an agreement prepared by one of the parties thereto, which is susceptible of more than one construction, should receive such a construction as the party preparing the same at the time supposed the other party would give to it, or such a construction as the other party would be fairly justified in giving to it.

3. Parol evidence is generally admissible when it is offered for the purpose of explaining and showing the true nature of the transaction between the parties. Such evidence is not offered for the purpose of varying the terms of a written instrument between the parties.

[153 Neb. 125] 4. The 'burden of proof' means the duty resting on one party or the other, usually the party having the affirmative, to establish by preponderance of evidence a proposition essential to the maintenance of the action. In this sense the burden of proof never shifts or changes, but remains from the first to last where it is placed by the pleadings or the substantive law of the case.

5. An instruction on the burden of proof which fails to inform the jury as to what their verdict should be in the event the evidence is equally balanced or preponderates in favor of the defendant is prejudicially erroneous.

6. Evidence examined and held sufficient to warrant submission to the jury.

Max Kier and Charles Bocken, both of Lincoln, for appellant.

William L. Walker, Leonard Dunker, and Earl Ludlam, all of Loncoln, for appellee.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

MESSMORE, Justice.

This is a replevin action instituted by the plaintiff against the defendant to recover certain personal property, for the purposes of this appeal, described as a pair of candelabra or branch candlesticks. The plaintiff's amended petition alleges that she is the owner of one pair of large, tall grape candelabra, is entitled to the immediate possession of the same, and that said property is wrongfully and unlawfully detained

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by the defendant. The defendant's answer is a general denial.

The cause was tried to a jury resulting in a verdict finding that at the commencement of the action the right of possession of the personal property in controversy, to wit: One pair of large grape candelabra, was in the plaintiff, and assessing damages against the defendant in the amount of one cent. The defendant Wyona Frey was dismissed out of the action, the evidence being insufficient[153 Neb. 126] to show that she was involved in the controversy.

Upon the overruling of the defendant's motion for new trial, defendant appeals.

For convenience we will refer to the parties as originally designated in the district court.

The defendant predicates error on the trial court's part in not instructing a verdict for the defendant as requested by defendant's tendered instruction No. 2. We examine the record to determine whether or not the trial court erred in such respect.

The record shows that on December 3, 1947, through a real estate agency, an appointment was made for the plaintiff to meet the defendant and her daughter Wyona at the defendant's home with a view to exchanging real estate properties. While the plaintiff was inspecting the interior of the defendant's home she saw and inspected a pair of grape candelabra which were sitting on the dining room table. The plaintiff testified that the defendant, talking with reference to the exchange of properties, stated that she wanted $85,000 for her property just as it stood. From that date until April 4, 1948, the plaintiff was in the defendant's home a number of times, and each time the candelabra were on the dining room table.

On the evening of April 3, 1948, the defendant called the plaintiff, saying in effect that she and the plaintiff could make their own agreement about the furnishings the way they wanted it, as they understood each other. Pursuant to arrangements made at that time, the plaintiff went to the defendant's home the following day, April 4, 1948. The plaintiff and defendant were alone, and while they were going through the house the defendant said she did not want anything, that there was no sentiment about it and she would be better off out of the big house, and told the plaintiff: "Everything is yours, lock, stock and barrel." The plaintiff saw the pair of candelabra that day. The defendant told her: "They belong on this table; they are yours. They belong in this house.' [153 Neb. 127] * * * 'I couldn't use them in a small house." The parties then discussed the exchange of properties and household furnishings. An agreement was written out by the plaintiff. The plaintiff testified that the defendant dictated the agreement, but this is denied by the defendant.

The agreement, exhibit No. 1, is as follows: 'Between Vergina Frye and Myrtle Fitzsimons agreement on furniture Party 2. Fitzsimons agrees to Leave and Stove on 2nd floor Electric range In Kitchen also deep freeze White Handles. Mrs. Frey takes 2 bedroom sets the furniture known as In Wyona's apt also her refrigerator. Also her desk and Duano. rose. this is our personal agreement between we two.' Signed 'Virginia R. Frey. Myrtle Fitzsimons.'

On April 6, 1948, the plaintiff, her friend Roy Young, and the defendant met in the office of the defendant's counsel. Plaintiff's counsel was also present. A discussion was had between the parties as to the contents of a contract to be prepared for the exchange of real estate between the parties. The witness Roy Young testified that at that time the plaintiff handed the defendant's counsel the agreement, exhibit No. 1, and asked him to look it over and have the defendant verify her signature. Counsel handed it to the defendant. She acknowledged her signature, and discussion ensued between the defendant's counsel and...