Frenzer v. Richards
| Decision Date | 04 April 1900 |
| Docket Number | 9,183 |
| Citation | 82 N.W. 317,60 Neb. 131 |
| Parties | JOSEPH P. FRENZER v. JAMES RICHARDS |
| Court | Nebraska Supreme Court |
ERROR to the district court for Douglas county. Tried below before SLABAUGH, J. Affirmed.
AFFIRMED.
Clair & Cowles and C. S. Lobingier, for plaintiff in error.
B. G Burbank, contra.
James Richard, sued Joseph P. Frenzer to recover the possession of specific chattels. The order of delivery was not executed and the action, proceeding as one for damages only, resulted in a verdict and judgment in favor of the plaintiff. The property in controversy was certain jewelry which Richards deposited with Frenzer as security for a loan of $ 150. Whether the money loaned belonged to the defendant or to one Dr. Roy, is a matter involved in considerable doubt. It is certain, however, that the jewelry was held by Frenzer and that the interest payments, amounting to five per cent per month, were made to him. After a large amount of usurious interest had been paid, the rights of Dr. Roy, if he had any were transferred to Mrs. Hitchcock; but the custody of the pledge was not changed. The plaintiff paid the defendant $ 126 as interest. He tendered him $ 24 more and then brought suit to recover possession of the jewelry. The principal contention of the defendant is that he was a mere agent of both Roy and Hitchcock, and that his agency had been terminated before the offer to pay the last $ 24 was made. The plaintiff insists that he had no business relations at any time with either Dr. Roy or Mrs. Hitchcock, and that from the beginning to the end of the transaction he dealt with Frenzer as the lender of the $ 150 and the pledgee of the property. It is conceded by counsel for defendant that the jury, under the instructions of the court, were warranted in finding in favor of the plaintiff, but he earnestly insists that the instructions were erroneous and that the judgment should be, therefore, reversed.
In the motion for a new trial, the fifth specification is as follows: "The court erred in giving the first, second, third and fourth instructions which he gave on his own motion." One of these instructions related to the burden of proof, was favorable to the defendant, and was obviously correct. The trial court was not bound to examine the other instructions covered by the assignment and we are not at liberty to do so. Such is the rule established by our decisions. Johnston v. Milwaukee & Wyoming Investment Co. 49 Neb. 68, 68 N.W. 383; Graham v. Frazier, 49 Neb. 90, 68 N.W. 367; Flower v. Nichols, 55 Neb. 314, 75 N.W. 864; McIntyre v. Union P. R. Co. 56 Neb. 587, 77 N.W. 57; Spirk v. Chicago, B. & Q. R. Co. 57 Neb. 565, 78 N.W. 272. In Johnston v. Milwaukee & Wyoming Investment Co. supra, it is said: In view of the condition of the record, the charge of the court is to be regarded as the law of the case (World Mutual Benefit Ass'n. v. Worthing, 59 Neb. 587, 81 N.W. 620); and the verdict being in accordance therewith, must be permitted to stand. We have read the evidence and are of opinion that there is no just ground for the claim that it is insufficient to sustain the verdict. Defendant's own testimony shows that the plaintiff had a contract right to make all payments to him.
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