King v. Day
| Decision Date | 19 May 1917 |
| Docket Number | 19006 |
| Citation | 163 N.W. 150,101 Neb. 346 |
| Parties | ROBERT S. KING, APPELLANT, v. W. W. DAY, APPELLEE |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Lancaster county: P. JAMES COSGRAVE, JUDGE. Reversed.
REVERSED.
Burkett Wilson & Brown, for appellant.
Strode & Beghtol, contra.
Under a contract entered into January 17, 1913, plaintiff purchased of defendant all the stock in the State Oil Company, agreeing to pay therefor $ 18,500, the business being transferred to plaintiff on the afternoon of January 29, 1913. By the terms of the sale defendant guaranteed that the value of the goods, wares and merchandise was $ 6,797.37; that the company owned 1,650 steel barrels; that the bills payable did not exceed $ 21,950.75, defendant agreeing to pay all bills in excess thereof; that the accounts receivable amounted to $ 12,288.24 and would be paid within three months. The value of the good will was fixed at $ 2,500. Alleging that defendant, "for the purpose of inducing the plaintiff to make said purchase and to enter into said contract, falsely and fraudulently and for the purpose of deceiving the plaintiff" misrepresented the net value of the assets, plaintiff brought this action to recover $ 17,943.60, it being alleged that the company was insolvent at the time plaintiff purchased the stock. There was a verdict for plaintiff for $ 1,941.90, and from the judgment thereon plaintiff appeals.
The controlling question on appeal is plaintiff's contention that his motion for a new trial should have been sustained, the proof conclusively showing that the verdict should have been returned for a greater sum than $ 1,941.90, to wit, $ 15,486.28.
On appeal plaintiff classifies his elements of recovery as follows: for unpaid accounts receivable, $ 4,732.96; for excess accounts payable, not listed by defendant, $ 4,409.10; for shortage in inventory, $ 950.05; for goods on consignment, $ 1,194.44; for shortage in barrels, $ 1,698.73; and for good will $ 2,500.
Without considering these claims in detail, it is apparent that the verdict is not in harmony with the evidence. In the list of accounts receivable, items aggregating about $ 600 were listed twice by defendant. In the list of accounts payable there was a mistake of $ 767.25, a debt of $ 775 being listed as $ 7.75. Taxes not listed by defendant amounted to $ 139.17. The largest claim under the classification of excess accounts payable relates to two cars of gasoline and one car of oil from the Chanute Refining Company, which, with freight charges and inspection fees, amounted to $ 2,544.86. There is considerable testimony about three cars on the switch track at the State Oil Company at the time the inventory was taken, January 29, 1913, and it seems to be proved that these cars were not inventoried. The three cars for which plaintiff is seeking to recover are cars unloaded while defendant was in charge of the company. The car of oil was shipped under an invoice dated January 10, 1913, for $ 324.16; one car of gas under an invoice dated January 3, 1913, for $ 910.13; the other car under an invoice dated January 13, 1913, for $ 100.83. The first two cars were paid for by plaintiff February 10, and the third car February 13. The records of the railroad company show that these cars were unloaded January 9, 18, and 20--some time before plain...
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