Hartwig v. Gordon
| Citation | 56 N.W. 324,37 Neb. 657 |
| Decision Date | 26 September 1893 |
| Docket Number | 5160 |
| Parties | ERNST F. HARTWIG v. JAMES L. GORDON |
| Court | Nebraska Supreme Court |
ERROR from the district court of Gage county. Tried below before APPELGET, J.
REVERSED AND REMANDED.
Rickards & Prout, for plaintiff in error:
The instructions should be applicable to the evidence introduced on the trial. It is error to disregard this rule. (City of Lincoln v. Holmes, 20 Neb. 47; Stough v Stefani, 19 Neb. 468; Ballard v. State, 19 Neb 609, 28 N.W. 271; Meredith v. Kennard, 1 Neb. 319; Neihardt v. Kilmer, 12 Neb. 38; Republican V. R Co. v. Fink, 18 Neb. 92.) Instructions should be in writing. (Ch. 19, secs. 52, 56, Comp. Stats.; Republican V. R. Co. v. Arnold, 13 Neb. 488.)
Griggs, Rinaker & Bibb, contra.
This is an action commenced by the plaintiff to recover from the defendant the sum of $ 98.60, balance due on a bill of merchandise sold to the defendant in error. Trial was had and judgment for plaintiff. Defendant appealed to the district court. The defendant answered the petition of the plaintiff, admitted the claim of the plaintiff, and for further answer set up a counter-claim against the plaintiff in the sum of $ 250, moneys which he claimed to be due him on account of failure of a warranty of title to certain saloon fixtures which he alleged in his answer he purchased from the plaintiff for the sum of $ 550. The plaintiff replied denying each and every allegation of new matter contained in the answer. A trial was had to a jury.
In addition to the testimony in behalf of the defendant, and sustaining his cause of action, the evidence tends to show the following facts: In 1884 one George Poffenbarger was indebted to H. R. W. Hartwig & Co., a wholesale liquor firm of St. Joseph, Missouri, in a large sum of money, $ 600 of which was secured by chattel mortgage upon saloon fixtures and buildings located in the town of Blue Springs. In 1889 Poffenbarger sold the saloon fixtures, with the consent of Hartwig & Co., to the firm of Sivey & Bloom, who paid $ 300 in cash and executed to Hartwig & Co. a promissory note for $ 300 due July 8, 1889, as collateral to the note and mortgage which they already held against Poffenbarger. On or about the 5th day of July, 1889, Sivey & Bloom became indebted to the plaintiff herein in quite a large amount for merchandise, and becoming embarrassed it was agreed between Sivey & Bloom and the plaintiff that George Poffenbarger should be placed in the saloon to receive the moneys and apply the proceeds after the payment of current expenses to the liquidation of Hartwig's claim against Sivey & Bloom. Poffenbarger remained in this position until some time in May, 1890, when the defendant Gordon went to Blue Springs and negotiated for the purchase of the fixtures for the purpose of going into the saloon business in Blue Springs. After some preliminary arrangement a sale was consummated between the parties by which the defendant Gordon was to pay $ 550 for the saloon fixtures, $ 300 of which was to be paid in taking up a note which Sivey & Bloom had given to Hartwig & Co., the remaining $ 250 to be paid upon the bills of the concern which had been contracted during the time that Sivey, or Sivey & Bloom, were running the business. About the 21st day of October, 1889, Eli Sivey, who succeeded to the rights of Sivey & Bloom in said property, executed a mortgage to secure a note of $ 1,000 to one Walter Foster, and afterwards, on the 11th of November, 1889, Sivey executed another mortgage upon the same property to Walter Foster to secure the sum of $ 1,000. Both these notes and mortgages were afterwards assigned by Foster to one William Little, who, in June, 1890, and after the sale to Gordon, attempted to foreclose the mortgages, and for that purpose commenced a replevin action in the district court of Gage county against Eli Sivey and the defendant Gordon, to recover possession of said property, which action was tried in the district court of Gage county and judgment rendered in favor of the plaintiff therein on the 18th day of December, 1890; that action is now pending on error in this court.
The theory on which this case was tried on the part of defendant in the court below was that Hartwig claimed to be the absolute owner of the property, and, as such owner, sold the same to Gordon and warranted the title. The evidence fails to establish this theory. The evidence shows clearly that the only interest Hartwig had in this property was to the extent of his mortgage of $ 300, three hundred of the $ 600 due him from Poffenbarger having been paid at the time Sivey & Bloom purchased from Poffenbarger. Of the $ 250 which Gordon paid, and for which he claims reimbursement from the plaintiff, not one dollar was received by Hartwig except on a merchandise bill which Sivey owed, and interest on the Sivey & Bloom note which had accumulated prior to the purchase by Gordon. Every cent of this $ 250 was paid out for the benefit of Sivey on bills which he had contracted while running the saloon, except possibly $ 25 which went to pay a check which he had drawn. It is further shown by the evidence that Hartwig was in no manner responsible for any of these debts to the payment of which the $ 250 was applied. How then can it be claimed that the plaintiff is responsible for this money to Gordon and should pay the amount back to him? But it is contended on behalf of this defendant that Poffenbarger was the agent of the plaintiff, and that the received the $ 250. The interest of the plaintiff in the property extended no further than his lien by virtue of the mortgage of $ 300. This amount was assumed by Gordon, who, as he himself testifies, went to St. Joseph and had an interview with the plaintiff, and it was then agreed that Gordon should pay the $ 300 to plaintiff, and that he should have six months' further time in which to pay it. It seems he never complied with that part of his contract. This being true, Hartwig could have had no...
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