Frederick v. Ballard

• Decision Date: 14 October 1884
• Citation: 20 N.W. 870,16 Neb. 559
• Parties: FREDERICK v. BALLARD.
• Court: Nebraska Supreme Court

16 Neb. 559

20 N.W. 870

FREDERICK

v.BALLARD.

Supreme Court of Nebraska.

Filed October 14, 1884.

Error from Washington county.

L. W. Osborn, for plaintiff.

M. Ballard and George W. Doane, for defendant.

COBB, C. J.

It appears from the pleadings that the plaintiff in the court below purchased and obtained, by verbal assignment, from one Samuel M. Wright, a certain claim which the said Wright held against the defendant below, plaintiff in error in this court. This claim grew out of the purchase by Frederick, plaintiff in error, of a lot of hogs from the said Wright. These hogs were bought while on the premises of Wright, but were to be delivered to Frederick at his place near Blair; but there is a radical conflict between the parties, both in their pleadings and evidence, as to whether the hogs were to be delivered at the said point as a part of the consideration for which the gross sum or price of $385 was to be paid, or whether the price of the hogs as agreed upon was $365; the hogs to be considered delivered at the time and place of the verbal contract, and the additional $20 to be paid as the price of hauling the hogs to Blair, as on an independent contract. There is no dispute as to the delivery of the principal part of the hogs, or of the payment by Frederick to Wright of $300 of the purchase money before the sale of the claim by Wright to the plaintiff below. But it is claimed by Frederick, both in his pleadings and in his evidence, that Wright failed to deliver three of the large hogs constituting this purchase, and which he testified, when on the stand as a witness in his own behalf, were worth $15 each. Also that it was a part of the said contract of purchase between the defendant and the said Wright, and a part of the consideration thereof, that he, the said Wright, would properly care for two sows, the same being a part of said purchase of hogs, and then being heavy with pig, until their delivery to the said defendant; and that in the event of either of the said sows being delivered of pigs before the same were delivered to the defendants, he, the said Wright, would properly care for, and that when old enough he would deliver the same, together with the sows, to the defendant; but that prior to the time of said delivery to the defendant, and while in the possession of said Wright, one of said sows was delivered of her pigs, to the number of about 10, and that in violationof his said agreement the said Wright negligently and carelessly allowed said pigs to be destroyed, and wholly failed and neglected to deliver any of the said pigs to the defendant, to his damage in the sum of $25.

It further appears from the pleadings and evidence in the case, and the admissions of the parties in open court, as shown by the bill of exceptions, that on the twenty-seventh day of July, 1881, one David Couchman had a judgment against the said Samuel M. Wright standing on the docket of the district court of Washington county in full force; that on that day process of garnishment was issued on said judgment and served on the plaintiff in error; that he appeared and answered as such garnishee in the said cause, and that thereupon the said court made and entered an order requiring him, the said E. B. Frederick, to pay into court the sum of $40 as such garnishee. The issues then before the district court in this case were: (1) What balance was due to Wright from Frederick on the sale and delivery of the hogs at the time of the sale and assignment of the claim by Wright to the plaintiff below; and (2) was the sale and delivery of the claim by Wright to plaintiff prior in point of time to the service of the process in garnishment on Frederick. There was evidence on both of these issues before the jury proper for its consideration, and if the law was correctly given to the jury by the court, and there is evidence to sustain their verdict, it cannot be disturbed. But it is contended by plaintiff in error that the law was not correctly given to the jury in the charge of the court, and that by it they were misled to his prejudice.

The instructions complained of are as follows: “(4) You are instructed that if you are satisfied from the evidence that Wright, on the twenty-first day of July, assigned to the plaintiff all his interest in his claim against the defendant, then you must find for the plaintiff to the extent that said defendant was indebted to said Wright. (4 1/2) You are instructed that it makes no difference that all of the hogs had not been delivered at the time of the assignment to Ballard; the assignment is good notwithstanding, and conveyed to Ballard all rights which Wright would have had when all the hogs should be delivered. (5) Should you find from the evidence that the plaintiff did not receive an assignment of said claim against defendant until after the service of the garnishment writ, then the plaintiff cannot recover in this action.” The...