McCready v. Phillips
| Decision Date | 20 October 1898 |
| Docket Number | 9725 |
| Parties | A. W. MCCREADY v. THOMAS L. PHILLIPS |
| Court | Nebraska Supreme Court |
ERROR from the district court of Lancaster county. Tried below before HALL, J. Affirmed upon filing of remittitur.
Affirmed upon filing of remittitur.
A. G Greenlee, for plaintiff in error.
Tibbets Bros., Morey & Ferris and C. T. Jenkins, contra.
This case was before the court at a former term, and a judgment for the plaintiff was then reversed for error in the instructions and insufficiency of the evidence to sustain a recovery under the allegations of the petition. (McCready v. Phillips, 44 Neb. 790, 63 N.W. 7.) After the case had been remanded to the district court amended pleadings were filed. A trial was had on the issues so presented, and there was a verdict and judgment for the plaintiff for $ 6,000. The defendant again prosecutes proceedings in error.
The amended petition is framed on an entirely different theory than the original, and the case is now presented in an entirely different aspect. The original petition in one count charged a conversion of certain chattels; in another it sought recovery for false representations, inducing plaintiff to sell a farm to defendant. The amended petition is in a single count, and while it pleads all the facts contained in the original, it pleads additional matter, and all as stating a scheme of deception whereby plaintiff was defrauded. In brief, it charges that defendant sold plaintiff certain chattels and agreed to rent him a farm in Dakota; that by reason of the false representations alleged in the former petition plaintiff was induced to make absolute a conveyance of a farm in Seward county, Nebraska, which he had conveyed to defendant as security for the purchase price of the chattels; that defendant refused to rent to plaintiff the Dakota farm, and kept and converted to his own use the chattels, and that all of said acts were performed with the fraudulent design and intent on part of defendant of cheating plaintiff, and of not performing his contract. The answer denies all charges of fraud, pleads the contracts in some detail, and demands judgment on certain notes resulting from the transactions.
It is first argued that the verdict is not sustained by the evidence. While the argument on this topic is subdivided, it will be most convenient to treat it as a single assignment. It is not contended that there was no evidence tending to show false representations, but rather that such as might have been false were not material and worked no damage. We think the argument on this point disregards the theory on which the amended petition is drawn. For its proper consideration a statement of the facts is necessary. Phillips was the owner of a farm in Seward county containing 320 acres and valued by different witnesses at from $ 4,000 to $ 9,600. It was incumbered by mortgages amounting to almost $ 3,000. A judgment of about $ 500 had been rendered against Phillips and others in Lancaster county, and by means of a transcript had become a lien on the farm. The land was occupied by a tenant, Phillips and his family residing in Lincoln. On most points relating to the transactions in controversy the evidence is sharply conflicting. We shall state as facts the evidence tending to support plaintiff's claim, which the jury evidently found to be true. Phillips, late in 1886, was in Sioux City, Iowa apparently selling rights under a patent. One day he met McCready at the post office and the two men fell into conversation. They had never met before and apparently had never heard of one another. As a result of this first conversation Phillips became imbued with the project of engaging in the live-stock business in Dakota, and within a day or two he went with McCready to a place near Madison, in the then territory of Dakota, and contracted to purchase the chattels above referred to, consisting of live stock, grain and household goods. The purchase price was $ 3,000, for which Phillips gave six notes of $ 500 each, payable to the order of one A. L. Burt, for whom McCready claimed to be acting. To secure the notes Phillips executed a chattel mortgage upon the chattels. In the meantime Phillips had told McCready of his owning the farm, and at McCready's instance Phillips executed a deed conveying the farm to Mrs. McCready, as further security to Burt for the notes. This deed was executed December 2. McCready at once started for Lincoln, arriving the evening of December 3. He saw Mrs. Phillips that night and by appointment met her the morning of the 4th, when she executed and acknowledged the deed. At 2 o'clock that afternoon it was filed for record in Seward county. Mrs. Phillips disposed of most of her household furniture, and with the remainder and her four children went to Dakota, where the family established itself in a two-room house on a farm occupied by McCready. Phillips denies that he ever obtained possession, except on behalf of McCready, of the chattels he had bought, but it is quite evident that, while McCready had some use of them, they were under Phillips' dominion until the events in February shortly to be narrated. About December 23, McCready having returned to Dakota, he represented to Phillips that an execution on the judgment had been levied on the Seward county farm and that it was about to be sold, and that foreclosure proceedings had been begun on the mortgages. These representations were false. Having so induced Phillips to believe that his farm was about to be lost, he persuaded Phillips to let his conveyance become absolute by a sale to McCready. There is a dispute as to the terms. McCready claims that the price was $ 4,500; that the incumbrances were computed, and that a balance of $ 878 being found due Phillips, this was credited on the chattel sale, a novation of which was then effected. Phillips claims that the price was $ 6,000; that some of the chattels were then relinquished, the remainder of the debt thereon canceled, and he was to have $ 878 in cash as he might need it. Certain it is that a stallion which Phillips had bought was then turned back, reducing the price of the chattels to $ 2,400; that Phillips executed notes to Mrs. McCready for $ 1,500, and that it was understood that Phillips was in some way credited $ 878. The notes to Burt were not delivered up, but no recovery has been sought on them, and there was at some time written thereon a memorandum indicating that they were held only as collateral to the new notes. So matters went until February 23. Phillips then found that the farm he expected had been leased to another and he determined to return to Nebraska. McCready says he simply became discouraged. Discouragement is not surprising under all the circumstances, as he seems to have become involved in debt to McCready $ 502 additional in the interval. McCready and Phillips had another settlement, when it was agreed that certain things should be done permitting Phillips and his family to get away. The following day they all drove to Madison, where, shortly before the time for the train to leave, they entered a bank, McCready advanced to Phillips $ 100 to pay his traveling expenses, and Phillips again relapsed into his habit of signing documents presented by McCready. Among those then signed was a note for $ 602 and a power of attorney. The note represented money lent and the price of feed furnished by McCready. The power of attorney is a remarkable instrument. It is executed by both Phillips and wife and authorizes McCready to sell the chattels and from the proceeds pay the notes for $ 1,500, the note for $ 602, the expense of keeping the chattels, and a commission to McCready for selling them. Then McCready was to send "whatever is left" to Phillips at Omaha. It also contains a stipulation for a deficiency judgment against Phillips for anything within the above category which might not be realized, and closes as follows: "And...
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