Kierstead v. Brown

• Decision Date: 14 March 1888
• Citation: 23 Neb. 595,37 N.W. 471
• Parties: KIERSTEAD v. BROWN.
• Court: Nebraska Supreme Court

23 Neb. 595

37 N.W. 471

KIERSTEAD

v.BROWN.

Supreme Court of Nebraska.

March 14, 1888.

Syllabus by the Court.

In a case where the plaintiff's cause of action was that the defendant and one H. had taken possession of certain horses and wagon, the property of one McG., on which plaintiff held a chattel mortgage, and sold the same, the defense was a general denial,--the point of contention being the identity of certain horses and wagon sold by defendant and H. with the mortgaged property, the evidence on which point was conflicting,--the plaintiff offered, and the court admitted, in evidence, a written offer of compromise and settlement made by him to defendant, and several letters written by defendant to plaintiff in response to such offer of settlement and compromise. Held error, and a new trial granted.

Error to district court, Madison county; CRAWFORD, Judge.

E. S. Brown, receiver for the Northwestern Manufacturing & Car Company, brought this action against J. H. Kierstead for an alleged conversion of property claimed by the company under a chattel mortgage from William McGuire. Judgment was entered for the plaintiff, and, the defendant's motion for a new trial having been overruled, he brings error.Brome, White & Mapes, for plaintiff in error.

A. N. Childs, for defendant in error.

COBB, J.

The petition alleges that on the 1st day of January, 1885, the plaintiff was the legal owner, and entitled to the immediate possession, of the following described personal property: One black horse, about 11 years old, one white forefoot, weighing about 1,200 lbs.; one gray horse, about 12 years old, weighing about 1,300 lbs.; one Whitewater wagon,--each of said horses of the value of $150, and said wagon of the value of $75; which property was at the time aforesaid in possession of William McGuire, bailee of plaintiff. That on or about said time the defendant wrongfully and unlawfully converted the same to his own use. That the plaintiff's demand upon the defendant for possession of said property, and the value thereof, was refused, to the plaintiff's damages in the sum of $400, and interest from January 1, 1885; with prayer for judgment. The defendant's answer was a general denial. There was a trial to a jury, with verdict for plaintiff in $132.10. The defendant's motion for a new trial being overruled, the judgment was rendered on the verdict. On the trial the plaintiff offered in evidence a certified copy of the chattel mortgage from William McGuire to the Northwestern Manufacturing & Car Company, of Stillwater, Minn., and the notes on which the mortgage was given, which, over the objections of defendant, were received in evidence; also the deposition of Frederick L. Eichelberg. Objections were made by defendant to a portion of said depositions, which were overruled, and the depositions were received in evidence; also the deposition of E. F. Brown, which was also admitted, over the objection of defendant to certain portions thereof.

Herman A. Pasawalk was sworn for the plaintiff, and testified that he resided at Norfolk, Neb. Was by occupation a dealer in implements and farm machinery for eight years, and agent for sale of goods of the Northwestern Manufacturing & Car Company, and was at the time of the transactions involved in this case. “ Question. Do you know anything with reference to this transaction,--the giving of the mortgage and notes? Answer. Yes; I made the sale. Q. Where was the matter closed up,--at your office in Norfolk? A. Yes. Q. You made the sale of the harvester? A. Thresher, you mean, instead of harvester? Q. Thresher and power? A. Yes. Q. Did you see the property covered by the chattel mortgage? A. Yes; part of it. I didn't see the plow and harrows. Q. You saw the horses, did you? A. Yes. Q. You are acquainted with the value of horses in the market around there, are you? A. Yes; I was at that time. Q. State the market value of the black horse. A. At the time I took the mortgage I valued the horse at $300. [Defendant moved to strike the answer from the record as not being responsive. Overruled, and excepted.] Q. What were they reasonably worth at that time? A. What they could have been sold at? Q. Yes, what would have been the reasonable market value? A. Spot cash? Q. Yes; what were they worth? A. Well, they could have been sold at that time for $300. I know that he hooked onto the separator, and hauled it over to the Yellow Banks with one team, and they generally put on four horses when they haul it over there. It takes a very good team to haul a separator over the Yellow Banks. Q. Did you see the Whitewater wagon? A. Yes. Q. What was the serviceable value of that? A. I should think it would be worth $40. The wagon, in my judgment, probably was four or five years old at that time. It was in a pretty fair shape, though, the wagon was. Q. Do you know what has become of McGuire? Do you know where he is? A. No; I don't know. Q. Do you know what other horses, if any, McGuire had at his place? A. That is all the horses he had at that time, but I think he had another black pony afterwards that was bought at Pierce; and when he went to Battle Creek it was not paid for, and they went and got it again.”

The substance of the deposition of Fred L. Eichelberg is as follows: “ Question. Are you the general sales agent of the plaintiff? Answer. Yes. Q. How long have you been acting in that capacity? A. About two and one-half months, but was engaged in the collection department of the plaintiff for about one year immediately preceding the making of the deposition now here. Q. Do you know anything of the making and execution of a certain chattel mortgage by one William McGuire to the N. W. Mfg. & Car Co., of Stillwater, Minn.? A. I knew of such a mortgage being placed on file. Q. State if you know whether or not the mortgage was made to secure a valid, bona fide debt due the company from McGuire. A. It was. Q. State all you know, fully, as to the making of the chattel mortgage, and the consideration therefor. A. It was given to secure payment for a Minn. Chief separator and power. The property mortgaged was the said separator and power, 2 horses, 1 wagon, 1 set harness, 1 sulky plow, and 1 Marsh harvester, as I remember. Q. State whether or not the property described in the plaintiff's petition is the same property as mentioned in the chattel mortgage executed by McGuire. A. Yes, it is; I have examined this carefully. Q. Where is the property now? A. Separator and power, the last I knew of them, were in the country, N. E. of Burnett. The balance of the property was sold by J. H. Kierstead. One Hoover took the horses, wagon, and harness to Valentine. Do not know where the balance of the property is. Q. Who took the property from McGuire's possession? A. One Mr. Hoover levied an attachment on all the property except the separator and power, and advertised sale of same to take place at Battle Creek, Neb., where the property was taken. Then J. H. Kierstead stopped the sale by virtue of a chattel mortgage that he held on that property, and moved the same to Burnett, Neb., where it was advertised and sold April 4, 1885. Q. Do you know the defendant, J. H. Kierstead? A. Yes. Q. Did you ever have a conversation with him with reference to the property described in the plaintiff's petition? A. Yes. Q. When and where did the conversation, or conversations, if more than one, occur? A. In his store at Burnett, Neb., May, 1885. I remember three or four such conversations. Q. What did he say, if anything, to you about his having taken the property mentioned in the petition from McGuire's possession? A. He told me that Hoover took out an attachment, and levied on McGuire's property, and had the same taken to Battle Creek, Neb., leaving it in charge of the livery man or constable,--do not remember exactly which. He advertised the sale to be at Battle Creek. That on the day of sale, as they were about to sell the property, J. H. Kierstead stopped the sale, with a constable or sheriff, by virtue of a mortgage he held thereon, and took the property, and removed it to Burnett, where he advertised sale to take place April 4, 1885, at 1 P. M., and sold the property there, in order to help us (Kierstead and Hoover) out. Mr. Hoover took the horses and wagon and harness, and went with them out west of Valentine, where he was surveying, expecting to sell them at a much better price, so as to help Hoover and Kierstead out on their claim. This, as near as I can remember, is what J. H. Kierstead told me in the conversation had with him in his store at Burnett during the month of May, 1885. [On the trial, before this deposition was read, defendant moved to strike out all that portion of the answer to interrogatory 12 which refers to a combination between Hoover and Kierstead to take the horses to Valentine, and sell them, to help the parties out. Motion overruled, with exceptions.] Q. What did you say to him, and he to you, with reference to the property? A. In behalf of plaintiff I demanded of Kierstead either the property, or a settlement of our claim, as per my proposition dated May 23, 1885. Kierstead refused to do anything at that time, but said he would write to Hoover, and they would do what was right Q. Has the defendant neglected and refused to return said property? A. Yes, he has. Q. Do you know the value of the property taken by the defendant as described in the plaintiff's petition? A. Yes, I have some idea of the valuation. Q. What is the fair market value of said property,--stating the value of each article separately? [On the trial the defendant objected to the interrogatory, for the reason that there is no sufficient foundation laid, and that the same is incompetent, irrelevant, and immaterial. Objection overruled, with exception.] A. I consider the cash value of the property as follows: Horses, (2,) each $100; wagon, $40; harness, $15; harvester, $25; sulky plow, $10. Q. When did you first learn of the...