Neeley v. Trautwein

• Decision Date: 12 July 1907
• Docket Number: 14,936
• Citation: 113 N.W. 141,79 Neb. 751
• Parties: NELLIE NEELEY, APPELLEE, v. HELEN TRAUTWEIN ET AL., APPELLANTS
• Court: Nebraska Supreme Court

113 N.W. 141

79 Neb. 751

NELLIE NEELEY, APPELLEE, v. HELEN TRAUTWEIN ET AL., APPELLANTS

No. 14,936

Supreme Court of Nebraska

July 12, 1907

APPEAL from the district court for Lancaster county: ALBERT J CORNISH, JUDGE. Affirmed.

AFFIRMED.

Billingsley & Greene, for appellants.

H. F Guile, J. M. Guile and B. F. Johnson, contra.

CALKINS C. JACKSON and AMES, CC., concur.

OPINION

CALKINS, C.

Mrs. Meserve was a masseuse, and in February, 1905, she was the proprietor of Meserve's Massage Parlors in Lincoln. At this time the plaintiff became connected with the business, going there, as she claims, under an agreement that Mrs. Meserve was to attempt to teach her the trade, and, if she succeeded in learning it, she was to buy the fixtures and good-will of the business. This arrangement, it is claimed, was carried out by the plaintiff, on the 15th of April, purchasing the fixtures and goodwill for the sum of $ 300. It is not denied that this sum was an adequate price, but the defendants claim that the plaintiff was only an employee, and that the sale was a pretended one. The defendants on the 8th day of May, 1905, recovered a judgment against Mrs. Meserve in justice court, and on the same day caused an execution to be issued and levied upon a part of the fixtures of the business, as aforesaid claimed to have been purchased by the plaintiff. This the plaintiff seeks to recover by replevin in this action. There was a trial to a jury in the district court, and a verdict for the plaintiff. From a judgment upon this verdict the defendants appeal.

1. The fifth instruction given by the court to the jury upon its own motion was as follows: "You are instructed that, if you find that the property in controversy had been the property of Mrs. Meserve and in her possession, and that until the constable levied upon and took the same there had been no change of possession evidenced by any acts that would give notice to outsiders of such change, such as a change of location of the property, or transfer of the keys where the property was kept, change of business signs, change of business advertising, change of dominion or control thereof or other visible acts indicating a change of ownership to such an extent that one would say there had been no apparent change of possession, and, if you find that Helen Trautwein was a creditor of Mrs. Meserve at the time said property was taken in execution, then the sale claimed by the plaintiff is presumed to be fraudulent and void, and the burden of proof is upon the plaintiff in such case to establish that such purchase was made in good faith and without fraudulent intent. The burden, however, in this case would be upon the defendants to show that there was no apparent change of possession such as above indicated, provided you find that at the time of the levy the goods were in the immediate possession of the plaintiff." The defendants especially object to the last clause of this instruction, and contend that it was the only instruction given as to the burden of proof, and that, while nothing less than proof of changed ownership would support the plaintiff's claim, this instruction adopts a different rule. Instructions must, however, be considered together. Philamalee v. State, 58 Neb. 320, 78 N.W. 625. Their true meaning and effect must be determined by considering all that is stated on each particular subject or branch of the case. St. Louis v. State, 8 Neb. 405, 1 N.W. 371. In the fourth instruction the jury were told that a sale made by one of goods and chattels in his possession is presumed to be fraudulent and void as to his creditors, unless such sale be accompanied by an immediate delivery and be followed by the actual and continued change of possession of the thing sold, and is conclusive evidence of fraud, unless it be made to appear on the...