Palmer v. Witcherly

• Decision Date: 15 November 1883
• Citation: 17 N.W. 364,15 Neb. 98
• Parties: PALMER v. WITCHERLY.
• Court: Nebraska Supreme Court

15 Neb. 98

17 N.W. 364

PALMER

v.WITCHERLY.

Supreme Court of Nebraska.

Filed November 15, 1883.

Error from Nemaha County.

W. T. Rogers, and D. H. Mercer, for plaintiff.

Osborn & Taylor, for defendant.

LAKE, C. J.

Of the errors complained of, the primary one is that of the county court, committed in ruling upon the admissibility of testimony offered to show a promise by one R. Hatchett to pay for a stove purchased by his wife, on her own credit, from the witness Richards. The claim of Richards upon Hatchett for the stove had been transferred to the plaintiff in error. The action in the county court was brought by the defendant in error on a due-bill not negotiable, duly assigned to him by said Hatchett, to whom the plaintiff in error had given it. There was no dispute as to the amount still unpaid on the due-bill; the question was simply as to the liability of Hatchett for the stove. If he were liable to Richards for the stove, the accounts therefor having been assigned to the plaintiff in error, it was a good set-off to the due-bill pro tanto. As before stated, the stove was purchased at first by Mrs. Hatchett on her own credit. This is not disputed. At the time of the purchase she was living with her husband, and the stove was taken to his house, where it was used and still remains, as the evidence shows.

Shortly after getting the stove, Mrs. Hatchett, it seems, separated from her husband, leaving it in his possession unpaid for. But she went to Richards “and asked him to take back the stove,” which he agreed to do, upon her promise to pay for its use while she had it. She told Richards where the stove was, and requested him to see Hatchett about it. Accordingly, Richards, as he testified, went to Hatchett, who still had the stove, to see about it. Hatchett said to him that he could not do without the stove, and would pay him for it. The plaintiff in error testified that after the account was transferred to him that it “was correct,” and “that he would pay it some time, but was not able to pay it then.” This admission, he says, was made on the occasion of a presentation by Hatchett of the due-bill for payment, and before its transfer to the defendant. And Hatchett himself, who was called for the defendant in error, swore that “Richards came to him and wanted to know about the stove.” He at first, it seems, “told Richards that he didn't care about the stove, as he could get one cheaper.” But finally he said to him that “if he would leave it he would pay for it some time,” but he couldn't do it then. With that...