Grimes v. Cannell

• Decision Date: 10 January 1888
• Citation: 36 N.W. 479,23 Neb. 187
• Parties: GRIMES v. CANNELL.
• Court: Nebraska Supreme Court

23 Neb. 187

36 N.W. 479

GRIMES

v.CANNELL.

Supreme Court of Nebraska.

January 10, 1888.

Syllabus by the Court.

Where chattels of the same nature and quantity, belonging to different persons, are mingled in one mass, as corn in a crib, any owner may recover his aliquot part by an action in replevin.¹

Where a chattel mortgage was given by certain owners of an elevator upon “10,000 bushels of ear corn, contained in cribs 1 and 2, situated south of the B. & M. R. R. side track, in the town of Crab Orchard, on right of way of said railroad company,” and the proof was that there were three cribs, without any designation as to numbers or the particular cribs included in the mortgage, held, too indefinite to entitle the mortgagee to recover corn placed in one of the cribs by a depositor.²

Every action must be prosecuted in the name of the real party in interest, and where an assignee is called as a witness to prove the assignment, he may be cross-examined as to the character of the assignment, and as to whether the avails of the suit are to be paid to the assignor; and it is error for the court to exclude such cross-examination. Where, however, it is evident that other witnesses may be called to prove the assignment, and there is no effort to introduce such testimony, or offer to prove the fact, it will be error without prejudice.

Error to district court, Johnson county; BROADY, Judge.

Action in replevin brought by J. D. Cannell against William Grimes, to recover possession of a number of bushels of wheat. Judgment was rendered for plaintiff, and defendant brings error.T. Appleget & Son, for plaintiff in error.

C. K. Chamberlain and Pemberton & Bush, for defendant in error.

MAXWELL, J.

This is an action in replevin brought in the district court of Johnson county to recover the possession of 3,083 bushels of corn, which, it is claimed, had been deposited with McClure & Griffin, at Crab Orchard, in Johnson county. It is alleged in the petition that of the above amount the plaintiff deposited 417 bushels, one J. A. Vanosdale deposited 649 bushels and 20 pounds, A. M. Williamson, 1,927 bushels, and F. A. Redfield, 89 bushels, and that all the receipts for the same were owned by the plaintiff. The answer is a general denial. On the trial of the cause, a jury was waived and the cause submitted to the court, which found for the plaintiff below, and rendered judgment accordingly. A motion for a new trial having been overruled, the cause is brought into this court by petition in error.

On the trial of the cause, the plaintiff below testified in substance as follows: “That McClure & Griffin done a general elevator business, had cribs, and kept corn on storage, and bought stock and grain, in 1885-86. I deposited corn with them. I also have an assignment of receipts for corn stored by others,--Vanosdale, Williamson, and Redfield. (Receipts introduced in evidence.) These tickets were issued by McClure & Griffin, and are correct, so far as I know. The whole of these receipts represent 3,083 bushels of corn. The corn was delivered to McClure & Griffin, at Crab Orchard, and I supposed was placed in crib No. 1. The corn was delivered to them for storage, to be sold by us at any time the price suited us. If we wanted to sell to them, we could; if not, we were to pay storage, and take out the corn. The agreement was that after the first of April we were to pay half a cent per month storage. Until that time we were to pay no storage, and the corn was to be delivered to us at any time we paid the storage. The corn was delivered last fall, most in November and December, (1885.) Corn was bringing in market 17 cents per bushel. It was worth that at the time we replevied it. I have paid the storage. McClure & Griffin was in possession of the corn, and the sheriff took it. He claimed to be agent for Rosenbaum Bros., and took it on a mortgage they held on 10,000 bushels of corn.”

On cross-examination he testified: “I don't know anything about cribs one and two. There are three cribs. I don't know whether this mortgage was on our corn. I did not see this corn put in the crib. McClure & Griffin were to store the corn. It seems there was other corn in the crib besides mine. I don't know how much there was left after we got ours. The date when I became owner of the other corn is on the tickets. They are assigned on the back. Question. Is it not true that you have an understanding with these parties who assigned tickets to you, that you are to pay this money only in case you succeeded in this suit? (Objected to as immaterial and irrelevant. Sustained. Defendant excepts.) I could not say that every ear taken out was the same that was put in there. I had possession of the corn assigned by the assignment. We could not take out two-thirds of the corn in the crib without getting some we put in there. We got out something over 3,000 bushels, and there was eighteen hundred left in the crib. Q. Now, you don't know whether this corn you replevied is the identical corn you put in the crib, do you? (Objected to as immaterial, irrelevant, and incompetent, and as having been answered. Sustained. Defendant excepts.) These different lots of corn were all supposed to be put in the same crib. According to Griffin's story they were. We know a great...