Kirkendall v. Davis

• Decision Date: 26 June 1894
• Citation: 59 N.W. 915,41 Neb. 285
• Parties: KIRKENDALL ET AL. v. DAVIS, SHERIFF.
• Court: Nebraska Supreme Court

41 Neb. 285

59 N.W. 915

KIRKENDALL ET AL.

v.DAVIS, SHERIFF.

Supreme Court of Nebraska.

June 26, 1894.

Syllabus by the Court.

1. An assignment of error as to the admission of incompetent, irrelevant, and immaterial evidence at the trial of a cause will not be considered in this court unless the particular rulings so claimed to be erroneous are specifically pointed out in an assignment of error in the petition in error.

2. The verdict of the jury on the trial of a cause, based upon conflicting testimony, will not be disturbed by this court unless manifestly wrong.

3. Where a stock of boots and shoes were ordered shipped to a firm unknown to them, by one claiming to act as their agent, but who was in no way authorized so to act, and such firm received and paid the freight on said stock, and, after holding them for about 30 days, allowed the party so ordering the goods to remove them from their store and to another town, and a creditor of a firm of which such party was formerly a member attached the goods, and, upon inquiring of the firm making the original shipment, was told by a member of the firm that they claimed no title to the goods, and they would make no interference in the attachment proceedings, and further advised the prosecution of the attachment proceedings to judgment and sale, held, that such statements made to the representative of the attaching creditors, where he, on the strength of said statements, incurred in their behalf additional expenses in prosecuting the proceedings in attachment, worked an estoppel of the shipper of said goods, and concluded the firm from setting up a title to them in a subsequent action of replevin to recover the possession of the goods from the officer holding them by virtue of the levy of writs issued in said attachment proceedings.

Error to district court, Gage county; Broady, Judge.

Action by Kirkendall, Jones & Co. against E. F. Davis, sheriff. Judgment for defendant, and plaintiffs bring error. Affirmed.Griggs, Rinaker & Bibb, for plaintiffs in error.

R. W. Sabin, for defendant in error.

HARRISON, J.

This is an action of replevin commenced in the county court of Gage county, and, from a judgment there rendered, appealed to the district court. The relief sought was to obtain possession of 11 boxes of boots and shoes and slippers, of the alleged value of $379.54, which had been seized by the defendant, the sheriff of Gage county, by virtue of a writ or writs of attachment. The petition filed was in the usual form. Defendant, for answer, filed a general denial as to all the allegations of the petition, excepting the one as to the value of the property. There was a trial to the court and a jury; a verdict for defendant. Plaintiffs filed a motion for a new trial, which was overruled; the judgment rendered for defendant, to reverse which the plaintiff has prosecuted a petition in error to this court.

One assignment of error, which is argued by counsel for plaintiffs in error in brief filed, is that the court erred in overruling the objection of the plaintiffs to incompetent, irrelevant, immaterial evidence offered by the defendant. It has been held that it is sufficient, in a motion for a new trial, to assign an alleged error in the admission or exclusion of testimony in this general manner. See Labaree v. Klosterman, 33 Neb. 156, 49 N. W. 1102, and Davis v. Getchell, 32 Neb. 808, 49 N. W. 776. But in both of these cases it is further held that such an assignment of error is not proper or permissible in a petition in error; that in the latter the particular rulings which are claimed to be erroneous must be pointed out specifically. The above assignment of error is too general, and does not entitle the plaintiff in error to have the errors in admitting the testimony, if any, reviewed.

The only other assignment of error which is argued and insisted upon is that the verdict is contrary to the evidence and the law. The evidence disclosed that one J. W. Wright was negotiating with the firm of Legros, Bigelow & Co., of Lincoln, Neb., with a view to becoming a member of the firm; that during the time that the negotiations were in progress he went to Omaha, and ordered the goods in controversy of the plaintiffs, stating that he was buying for Legros, Bigelow & Co., and ordered them forwarded to the firm, which was done. The goods were received by Legros, Bigelow & Co. at their place of business in Lincoln, and the freight paid by the firm, although the testimony further shows that they did not understand why the goods should have been shipped to them, and that in a conversation between members of the firm in reference to the goods, while they were on the sidewalk, where they had been deposited by the drayman when brought from the depot, one of them remarked that they probably were goods which had been ordered by Wright. The boxes containing the goods were taken into the store room of the firm, and there placed with some other boxes of similar goods belonging to Wright, which he had been allowed to store there, and were not opened. Soon afterwards the negotiations between the firm and Wright were broken off, and Wright took his departure for Horton, Kan., to which point he shipped the goods which had been stored in the room of the firm, including the cases of boots, etc., in controversy in this suit. In the meantime the Lincoln firm had notified plaintiffs of the receipt of the goods, and the further fact that they had not ordered them, but they allowed Wright to remove them, interposing no objections to such action on his part. We think, unquestionably, that the manner in which the goods were obtained by Wright from plaintiffs...