Glaze v. Parcel

• Decision Date: 05 June 1894
• Docket Number: 4952
• Citation: 59 N.W. 382,40 Neb. 732
• Parties: CHARLES A. GLAZE v. WILLIAM N. PARCEL
• Court: Nebraska Supreme Court

59 N.W. 382

40 Neb. 732

CHARLES A. GLAZE v. WILLIAM N. PARCEL

No. 4952

Supreme Court of Nebraska

June 5, 1894

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...