McPherson v. Wiswell

• Decision Date: 11 February 1886
• Citation: 26 N.W. 916,19 Neb. 117
• Parties: MCPHERSON v. WISWELL.
• Court: Nebraska Supreme Court

19 Neb. 117

26 N.W. 916

MCPHERSON

v.WISWELL.

Supreme Court of Nebraska.

Filed February 11, 1886.

Error from Gage county.Babcock & Davidson and Hardy & McCandless, for plaintiff.

Colby, Hazlett & Bates, for defendant.

COBB, J.

This cause was before this court at the July term, 1884, when the judgment of the district court was reversed, and the cause remanded. See case reported in 16 Neb. 625, and 21 N. W. Rep. 391. It seems that upon the second trial there was again a verdict and judgment for the defendants, and the cause is again brought to this court on error by the plaintiff. The cause was tried in the court below the second time, on the same pleadings as the first, except that before the second trial the plaintiff, by leave of the court, filed an amended reply; but as the pleadings were not very fully set out in the former opinion, I will copy the substance of the petition, answer, and reply.

“PETITION.

At the times hereinafter mentioned the plaintiff was the absolute owner of, and entitled to the possession of, 19 combined reapers and mowers, consisting of eleven double rigged machines known as ‘Marsh No. 4's,’ and eight machines known as ‘Valley Chiefs,’ of the value of $3,800. About December 25, 1877, the defendants combined, confederated, and conspired together to cheat, defraud, and swindle the plaintiff out of said property, and to unlawfully obtain possession thereof, and place the same beyond the reach of the plaintiff. For the purpose aforesaid, and in pursuance of said conspiracy, the defendants falsely and fraudulently contrived between them a sham sale of said property from defendant Wiswell to defendant Norcross; and further, in pursuance of the same design and conspiracy aforesaid, fraudulently contrived to obtain possession of said property, by means of a writ of replevin sued out by defendant Norcross, in an action wherein this plaintiff was not a party; and further, in pursuance of the same conspiracy aforesaid, the defendants did, at the same time aforesaid, wrongfully and unlawfully obtain possession of, and convert to their own use and benefit, all the said property, and placed the same beyond the reach of this plaintiff, to plaintiff's damage $5,500, for which plaintiff asks judgment.”

“ANSWER.

(1) Denies each and every allegation in plaintiff's petition contained. (2) That on the twenty-second day of October, 1877, after the accrual of the cause of action in plaintiff's petition, and before beginning this action, James S. Marsh and Elish C. Marsh, the parties from whom plaintiff claims to have purchased the property in controversy, and under whom plaintiff claims and derives title to the property described in the petition, if he has or ever had any title thereto, and this defendant Wiswell, by mutual agreement, submitted all causes of action existing between them, including the cause of action set out in plaintiff's petition, which was then owned by said Marshes, to the arbitration of Elijah Filley, Wm. H. Fulkerson, and Charles G. Dorsey, who were to make and publish their award on or before January 22, 1878; that January 18th said arbitrators made and published their award, [here follows a copy of the award,] by which they found ‘that on the nineteenth day of July, 1877, James S. and E. C. Marsh orally contracted’ with the defendant Wiswell for the purchase of three sections of school lands, and considerable personal property of said Wiswell, to be paid for in machines and money; and that the machines in question were, on or about July 20, 1877, by said Marshes, turned over to said Wiswell in pursuance of said contract by said Marshes; and that Wiswell was entitled to said machines; and said answer avers that these machines were awarded to said Wiswell by said arbitrators; that plaintiff had no interest in said machines, nor any part thereof, at that time, but acquired his interest subsequent to said arbitration, from said Marshes; and avers that said defendant has performed, and offered to perform, all conditions of said award on his part; that said Marshes have failed and refused so to do.”

REPLY.

(1) Admits there was a submission and award in arbitration, and avers that thereafter the district court, to which said award was made returnable for final judgment, fully and completely set aside said arbitration proceedings and said award, and held the same for naught; and that this plaintiff was not a party to said arbitration proceedings. (2) Avers that soon after July 19, 1877, defendant Wiswell of one part, and James S. and Elish C. Marsh of the other part, rescinded and abandoned their contemplated contract referred to in said amended answer, which was only oral negotiations for a written contract, which was never made nor perfected; yet, whatsoever there was of it the said parties fully rescinded and abandoned, and said Wiswell kept and retained all of said land mentioned in said amended answer, and also all the personal property therein mentioned. (3) A general denial of all new matter, and of every allegation in said amended answer not hereinbefore admitted.

The evidence at the last trial was about the same as at the first, except that there was some evidence tending to prove a rescission of the contract, under which the defendants claim the machines in question, by the defendant Wiswell.

The court then gave the following instructions asked by the plaintiff:

“(2) The jury are instructed that the Marshes being the original owners of the machines described in the petition, if you believe from the evidence that said machines were embraced in the written contracts or assignments by the Marshes to the plaintiff McPherson, which have been introduced in evidence, then the plaintiff acquired whatever title the Marshes had in said machines at the date of said contracts or assignments; and if you believe from the evidence that at that time the Marshes still really owned the same machines, and that the same have been converted by the defendants, then you will find for the plaintiff.

(3) The defense that defendant Wiswell purchased the machines in controversy of the Marshes prior to plaintiff's purchase of them is an affirmative one, and in order to maintain it defendants must prove such prior purchase by a preponderance of the proof; and unless you find that prior to November 5, 1877, defendant Wiswell purchased said machines of the Marshes, you will find for the plaintiff, if you further believe said machines were included and covered by said contracts of plaintiff.

(4) If the plaintiff is entitled to recover in this action at all, he is entitled to recover the value of the eleven Marsh No. 4's, and eight Valley Chief machines, on December 27, 1877, together with interest thereon from that day to the present, at the rate of seven per cent. per annum.

(5) If the parties to an alleged contract agree that it shall be reduced to writing in an instrument to be signed by them before it is considered complete, it will not be obligatory on them without the execution of such written instrument; and if you believe from the evidence defendant's claim to a purchase of the property in controversy by defendant Wiswell is based on negotiations between him and the Marshes, for an exchange of lands and personal property from Wiswell to the Marshes, and of the machines and money from the Marshes to Wiswell, intended by the parties to be consummated in a written agreement, but that it was never, in fact, so consummated in such written agreement, then you must find that no such purchase was made, and Wiswell did not obtain title to said property in controversy.

(6) If you believe from the evidence that, even if there was a completed contract between Marshes and Wiswell in relation to the machines in controversy, it is competent for you, if the evidence convinces you that such is the fact, to find that said contract was abandoned by the parties, in which case it will avail nothing to these defendants; and if you find that Wiswell sold and converted to his own use the property he claims was...