Palmer v. Witcherly
| Decision Date | 15 November 1883 |
| Citation | 17 N.W. 364,15 Neb. 98 |
| Parties | AARON PALMER, PLAINTIFF IN ERROR, v. W. ROSS WITCHERLY, DEFENDANT IN ERROR |
| Court | Nebraska Supreme Court |
ERROR to the district court for Nemaha county. Tried below before POUND, J.
REVERSED AND REMANDED.
William T. Rogers and D. H. Mercer, for plaintiff in error, cited Clopper v. Poland, 12 Neb. 69. Lawrence v Fox, 20 N.Y. 268. Dwyer v. Gibson, 16 Wis. 580. Calkins v. Chandler, 36 Mich. 323. Young v French, 35 Wis. 111. Hoover v. Morris, 3 Ohio 56. Wright v. M'Cully, 67 Mo. 134. Fitzgerald v. Morrissey, 14 Neb. 198.
Osborn & Taylor, for defendant in error, cited: Anderson v. Davis, 9 Vt. 136. Eddy v. Roberts, 17 Ill. 506. Westhamer v. Peacock, 2 Iowa 528. Sternburg v. Callanon, 14 Iowa 259. Brown v. Weber, 38 N.Y. 187. Gower v. Stewart, 40 Mich. 747. Stewart v. Campbell, 4 Am. Repts., 296.
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 account 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 by Richards, Hatchett admitted to him that it "was correct," and "that he would pay it sometime, 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 could not do it then. With that Richards went away, leaving the stove, which Hatchett still retains.
After this testimony respecting Hatchett's promises to pay for the stove had gone to the jury without objection as it seems it was, on motion of the attorney of the defendant in error, withdrawn by the court and wholly excluded from their consideration, for the reason that the promise was not in writing. This ruling was made on the supposition that Hatchett's agreement was to pay the debt of his wife. ...
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