Langdon v. Wintersteen
| Decision Date | 08 March 1899 |
| Citation | 78 N.W. 501,58 Neb. 278 |
| Parties | LANGDON v. WINTERSTEEN. |
| Court | Nebraska Supreme Court |
1. Affidavits used on the hearing of a motion for a new trial, in order to be considered in this court, must be embodied in a bill of exceptions.
2. To lay a foundation for the admission of testimony as to the value of goods in common use, it is sufficient to show that the witness, by purchasing and by pricing similar goods, is in a general way familiar with their value. The weight of the opinion then given is for the jury.
3. Where error is assigned to the admission of a large number of written instruments en masse, the assignment is bad unless all were improperly admitted.
4. An instruction is not prejudicially erroneous, although awkward in phraseology and ungrammatical, provided its meaning is clear.
5. It is the duty of the mortgagee of chattels, in selling under foreclosure, to give a reasonable opportunity to persons desiring to purchase to see the goods and to offer bids. Failing in this, the mortgagor may hold him accountable for the sacrifice thereby resulting.
6. It is not error to refuse an instruction the substance of which has been already given.
Error to district court, Gage county; Bush, Judge.
Action by Hattie S. Wintersteen against Joseph K. Langdon. There was a judgment for plaintiff, and defendant brings error. Affirmed.Geo. A. Murphy, for plaintiff in error.
F. N. Prout and Alfred Hazlett, for defendant in error.
Hattie S. Wintersteen brought this action against Langdon to recover damages for the conversion of a stock of millinery goods. Langdon, besides a general denial and a plea of res judicata, the merits of which are not presented for review, pleaded that the plaintiff had executed to him a mortgage on the goods, that he had taken possession and regularly sold them, and that they were insufficient to pay the debt secured by the mortgage. The plaintiff, in reply, pleaded that the mortgage was one executed by her to replace one which her husband, without title or authority, had previously made, and that she had made it under the promise that an extension of six months would be granted on the indebtedness; that Langdon, before any default had occurred, had seized the goods, and sold them on an insufficient offer and at a great sacrifice. The mortgage in evidence shows that it was to secure a note due six months after the making thereof. It also contains the usual clause for possession and foreclosure, if at any time the mortgagee shall feel unsafe and insecure. The plaintiff had a verdict and judgment.
The defendant complains, in the first place, that he was compelled to proceed with and complete the trial at an unseemly hour of the night, when his sole counsel was sick, and for that reason unable to properly present the case. Of such fact there is no competent proof in the record. The only thing on the subject appears in certain affidavits which are in the transcript, but not embodied in a bill of exceptions. If they were used on the hearing of the motion for a new trial, that fact should be made to appear by embodiment in the bill of exceptions; otherwise, the affidavits cannot be considered here. Morsch v. Besack, 52 Neb. 502, 72 N. W. 953, and cases there cited.
Complaint is next made of the admission of the testimony of a Mrs. Hollenbeck as to the value of the goods in controversy. The ground of the objection is that her competency was...
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