ERROR
from the district court of Lincoln county. Tried below before
CHURCH, J.
AFFIRMED.
T
Fulton Gantt, for plaintiff in error.
William
Neville and Grimes & Wilcox, contra.
OPINION
NORVAL, C. J.
This
was an action in replevin brought by plaintiff in error
before a justice of the peace to recover the possession of ninety-one head of cattle. The property was
taken under the writ, and possession thereof delivered to the
plaintiff. The appraised value of the stock being in excess
of the jurisdiction of a justice court, the cause was duly
certified under the statute to the district court, where the
issues were made up by the parties filing proper pleadings. A
trial to a jury resulted in a verdict and judgment in favor
of the defendant, and the plaintiff brings the record here
praying a reversal.
Prior
to the introduction of any testimony, it was stipulated by
the parties in open court that plaintiff was the owner of the
cattle in controversy on and prior to the 12th day of
December, 1889. On said date the cattle were delivered by
plaintiff to the defendant, under and in pursuance of the
following written agreement entered into between the parties:
"Article
of agreement, between C. A. Glaze, party of the first part
and W. N. Parcel, of the second part, witnesseth: That in
consideration of the following, that C. A. Glaze, of the
first part, does hereby deliver unto the said W. N. Parcel
ninety-one head of steers to be fed for the purpose of
fattening, the ages of which are one and two-year-olds; the
weight is at present sixty-eight thousand and eleven (68,011)
pounds, on the basis of two and three-fourth cents per pound
which the said W. N. Parcel hereby agrees to allow the said
C. A. Glaze five per cent, as interest on the principal; also
that he will feed the cattle in good shape, the same as any
prudent feeder would do, until such time as the cattle are in
proper shape to ship to market, with the intention of
obtaining the best results therefrom. Said cattle to be
delivered and weighed at Wellfleet, Nebraska, then they are
to be shipped and the expenses are to be paid equally by the
foregoing parties. Then it is further agreed that, if the
said cattle shall sell so as to net above three and
one-fourth cents per pound in Wellfleet, then, in that case,
the foregoing parties do hereby agree to divide
the profits equally, and in case they shall not net three and
one-fourth cents at Wellfleet, then the loss is to be paid
equally, the ownership of said cattle to remain with the said
C. A. Glaze until they are sold and delivered, which is to be
done by mutual consent, it being understood that the
two-year-olds are to be sold and delivered by the 1st...
