Omaha Alfalfa Milling Company v. Hallen

• Decision Date: 10 November 1920
• Docket Number: 21123
• Citation: 179 N.W. 1010,105 Neb. 193
• Parties: OMAHA ALFALFA MILLING COMPANY, APPELLANT, v. HJALMAR T. HALLEN ET AL., APPELLEES
• Court: Nebraska Supreme Court

179 N.W. 1010

105 Neb. 193

OMAHA ALFALFA MILLING COMPANY, APPELLANT, v. HJALMAR T. HALLEN ET AL., APPELLEES

No. 21123

Supreme Court of Nebraska

November 10, 1920

APPEAL from the district court for Buffalo county: BRUNO O HOSTETLER, JUDGE. Reversed.

REVERSED AND REMANDED.

J. M Fitzgerald, for appellant.

Lysle I. Abbott, John N. Dryden, and I. J. Dunn, contra.

OPINION

LETTON, J.

The petition in substance charges that plaintiff was the owner of 52 tons of alfalfa hay; that defendants unlawfully converted the hay to their own use; that its reasonable value was $ 1,040; that $ 626.25 has been paid, and there is still due $ 413.75, with interest from the date of conversion.

The answer of defendant Hallen admits that plaintiff was the owner of the hay, and the payment of $ 626.25, but denies every other allegation.

The answer of defendant Palmer is a general denial, and a statement that any hay purchased by him from Hallen was purchased for the Grain Belt Mills Company of St. Joseph, Missouri, and not for himself. A jury was waived, and the case tried to the court, which found for defendants, and dismissed the action. Plaintiff appeals.

The principal question is one of pleading, but it is necessary to state the facts. Plaintiff, whose place of business is in Omaha, purchased from one Hallen, who lived near Riverdale, Buffalo county, about 200 tons of alfalfa hay. This hay was to be shipped to Omaha, but, being unable to procure cars in which to ship it, a large portion of it was stored in a barn in Riverdale and left in custody of Hallen to be shipped by him when cars were obtainable. Plaintiff agreed to pay him 50 cents a ton for loading and shipping the hay.

About this time one Palmer, representing a milling concern at St Joseph, Missouri, was purchasing hay at Riverdale. Hallen sold him a quantity of hay which he had purchased from a man named Frederick. This will be hereafter referred to as the Frederick hay. Hallen was compelled to go to Omaha, and remained some weeks. Before he left he instructed one Lindholm, an employee, to load the Frederick hay and to notify Palmer, who would bill it out when it was ready for shipment. Lindholm evidently misunderstood the directions. He loaded the Frederick hay, also about 50 or 60 tons of plaintiff's hay, and notified Palmer, who billed it all to his principal in St. Joseph, making drafts for the purchase price. When Hallen returned he learned what had happened, and notified the plaintiff at Omaha. The president of the plaintiff corporation went to Riverdale, paid Hallen for loading the hay, and afterwards, though the evidence is not clear upon this, attempted to collect the value of the hay from the St. Joseph concern. In the meantime $ 626.25 had been paid into a bank at Kearney to Hallen's credit by the consignee, on account of this shipment of plaintiff's hay. Plaintiff...