Oberfelder v. Kavanaugh

• Decision Date: 23 March 1887
• Citation: 32 N.W. 295,21 Neb. 483
• Parties: OBERFELDER AND OTHERS v. KAVANAUGH.
• Court: Nebraska Supreme Court

21 Neb. 483

32 N.W. 295

OBERFELDER AND OTHERS

v.KAVANAUGH.

Supreme Court of Nebraska.

March 23, 1887.

Syllabus by the Court.

In an action against a sheriff for taking and carrying away a stock of millinery goods and notions, the point in dispute being whether the goods were the property of B. F. S., or of his wife, Mrs. B. F. S., it having been proved that both of them had, up to a certain point of time, under some authority, and in some capacity, exercised control over the said stock of goods, and the store in which the same was kept, held competent, on the part of the defendant, who claimed under Mr. B. F. S., to prove any fact connected with the business of the Stumps, which from its nature must have been known to Mrs. S., inconsistent with her claim of ownership.

The fact that goods purchased for said business at different times, extending over a period of four or five years, and amounting to several thousand dollars, had been shipped to B. F. S., and all correspondence in relation to such goods and purchases had been carried on between the wholesale merchant selling such goods and B. F. S., and in his name, held to afford some evidence, however slight, that B. F. S. was acting in the capacity of owner, rather than that of clerk, agent, or manager.

A trial court will always allow a witness to explain an error, mistake, or oversight in his testimony, when he requests to do so before leaving the stand. At what point of time, is a matter of discretion with the court.

Where a lease, purporting to have been executed by and between strangers and a party to the suit, is offered in evidence, and its execution is not admitted by the opposite party, such execution must be proved. Where such lease purports to be signed by a subscribing witness, proof of such signature being the genuine handwriting of the witness is sufficient.

A witness for defendant being under cross-examination, plaintiff's counsel asked him whether he had not, at a certain time and place, naming them, offered certain inducements of a pecuniary nature, specifying the same, to Mrs. B. F. S. if she would “come up and testify in the county court,” (the said Mrs. S. having afterwards given her deposition on the part of the plaintiff.) Defendant's objection to such question held properly sustained.

When an officer attaches property found in the possession of a stranger claiming title, in an action for such taking, the officer, in order to justify it, must not only prove that the attachment defendant was indebted to the attachment plaintiff, but that the attachment was regularly issued.

Error from Platte county.

McAllister Bros., for plaintiffs.

J. M. Macfarland, for defendant.

COBB, J.

The defendant in error, who was also defendant in the court below, is the sheriff of Platte county. On or about the seventh day of December, 1884, he had in his hands two certain orders of attachment, issued out of the county court of said county, against one B. F. Stump,--one in favor of Ledever, Strause & Co., for the sum of $970.86; the other in favor of Roll, Thayer, Williams & Co., for the sum of $247.88. These orders of attachment he levied upon a certain stock of millinery goods, notions, and store fixtures, then in a certain storehouse in the city of Columbus, and took and carried the same away. The plaintiffs were in the possession of the stock of goods at the time of the levy and taking, by virtue of a chattel mortgage thereof, executed to them by Mrs. B. F. Stump, dated and duly recorded on the eighth day of December, 1884. The action was brought for the value of the property taken, alleged in the petition to be $2,091.87. The defendant admitted the taking, justifying the same under and by virtue of the two orders of attachment above referrrd to, and alleging said property to be of the value of $1,142.63, and no more.

There was a trial to a jury, which found for the defendant. The plaintiffs' motion for a new trial having been overruled, a judgment was rendered for the defendant; and plaintiffs bring the cause to this court on error. The following are the errors assigned: “(1) The court erred in allowing the witness Charles McDonald to answer questions 5 and 6, on page 8 of the bill of exceptions. (2) The court erred in allowing the witness Charles McDonald to answer question on page 9 of the bill of exceptions. (3) The court erred in admittingExhibit D in evidence, bill of exceptions, page 18. (4) The court erred in not allowing the witness D. N. Meyers to answer the last question put to him on page 24 of the bill of exceptions. (5) The court erred in overruling plaintiffs' motion for a new trial on the ground that the verdict was against the evidence and contrary to law. (6) The court erred in overruling the plaintiffs' motion for a new trial generally. (7) The court erred in entering judgment against the plaintiffs, and in favor of the defendant.”

The plaintiffs proved their cause of action prima facie. Of this there can be no doubt. The plaintiffs' agent testified to the ownership and possession of the goods by Mrs. B. F. Stump at the time of the execution of the note and mortgage to the plaintiffs. The note and mortgage were introduced and received in evidence; that, after the execution and delivery of the mortgage, Mrs. Stump delivered the keys and possession of the store to the witness as agent of the plaintiffs, and that the store and goods were in such possession when the goods were levied on by the defendant. The balance of plaintiffs' evidence, up to their first rest, was confined to the question of the value of the goods taken by the defendant.

The defendant then called Charles McDonald, who testified that he was acquainted with B. F. Stump and Mrs. Stump; had known them for about four years; had been dealing with them during that time; had sold them goods from four to six times per year, amounting, in all, to several thousand dollars. The following question was then put to witness by counsel for defendant: “ Question. I will ask you to whom you always shipped and billed the goods in dealing with them?” This question was admitted, over the objection of plaintiffs, as immaterial and incompetent, and answered: “ Answer. To B. F. Stump.” Again, the following: “ Q. With whom was the correspondence in regard to the business transactions with the firm of B. F. Stump carried on?” Over the same objection admitted, and witness answered: “ A. With B. F. Stump.”

I cannot say that these questions, or the answers thereby elicited, were either immaterial or incompetent, although I think they were very near the line. The question at issue before the court and jury was as to the ownership of the attached property. It was and is an undisputed fact that such property had constituted the stock and fixtures of the store and business in which both Mrs. Stump, under whom plaintiffs claimed, and Mr. B. F. Stump, under whom defendant claimed, had, up to a certain point of time, under some authority and in some capacity, exercised control. Upon the plaintiffs' theory, Mrs. Stump was the owner of the goods, fixtures, and business, and B. F. Stump was her agent, clerk, or manager, while, upon the defendant's theory, B. F. Stump was the owner, and Mrs. Stump employed by him as a trimmer. Either of these theories, proved to be the true one, would be conclusive. After the departure of B. F. Stump, if never before, Mrs. Stump had exercised in her own right, real or assumed, exclusive ownership and control of the property, and in her deposition then on the files of the court had sworn to such ownership. It was then competent on the part of the defendant to prove any fact connected with the business, and which, from its nature, must have been known to Mrs. Stump,...