Pollock v. Whipple

• Decision Date: 18 September 1895
• Citation: 64 N.W. 210,45 Neb. 844
• Parties: POLLOCK v. WHIPPLE.
• Court: Nebraska Supreme Court

45 Neb. 844

64 N.W. 210

POLLOCK

v.WHIPPLE.

Supreme Court of Nebraska.

Sept. 18, 1895.

Syllabus by the Court.

1. Error cannot be predicated on the refusal of a district court to compel the plaintiff to elect on which one of two causes of action set out in his petition he will proceed to trial, when the two causes of action are identical. The remedy of a defendant in such a case is to move the court to strike out one of the causes of action, as surplusage.

2. One who purchases personal property from a conditional vendee, contractee, or lessee, in possession thereof, with actual knowledge of the conditions on which his vendor holds possession of such property, is not an innocent purchaser thereof, and acquires only such title as his vendor had.

Error to district court, Cedar county; Norris, Judge.

Replevin by David W. Whipple against William A. Pollock. Judgment for plaintiff, and defendant brings error. Affirmed.Barnes & Tyler, H. A. Miller, and Wilbur F. Bryant, for plaintiff in error.

J. S. Lothrop and John Bridenbaugh, for defendant in error.

RAGAN, C.

On December 9, 1885, D. W. Whipple entered into a contract in writing with Sylvester K. Smith and wife, in and by which he leased or bailed to them 17 head of cows and heifers. By the terms of the contract, Smith and wife were to return to Whipple on the 1st of March, 1890, 34 head of cows and heifers. The contract further provided that Smith and wife should not sell or dispose of any of the cattle, or their increase, let or bailed to them, without the consent of Whipple, and if they did so the contract should terminate, and Whipple have authority to take possession of the cattle. Mrs. Smith was the daughter of Whipple, and, at the time of the making of this contract, resided on a farm of Whipple's, in Cedar county. Whipple furnished Smith and wife the 17 head of cows and heifers, which, with their increase, were kept on the farm upon which Smith resided. In the spring of 1889 these cows and heifers and their increase amounted to about 40 head. About that time, Smith made a bill of sale of all the cattle in his possession to W. A. Pollock, in payment of a debt owing to the latter by Smith, and Pollock took possession of all the cattle on the Smith farm, and Whipple then brought this suit in replevin, to the district court of Cedar county, against Pollock, for said cattle and their increase. There was a trial to a jury, with a verdict and judgment in favor of Whipple, to reverse which Pollock prosecutes to this court a petition in error. Of the errors assigned, we notice the following:

1. That the court erred in overruling Pollock's motion to require Whipple to elect on which of the two causes of action set out in his petition he would proceed to trial. The petition contains but one cause of action. It alleges that Whipple is the owner, and entitled to the immediate possession of, certain cattle (describing them), and contains the usual allegations, that the property is wrongfully detained from the possession of the plaintiff by the defendant, to his damage, etc. The second count or cause of action in the petition is identical with the first, except that it sets out the contract referred to above, entered into between Whipple and Smith and wife, by which the cattle were let or bailed to the latter, and that Pollock had actual knowledge of the contents of this contract before his unlawful taking possession of the cattle replevied. Counsel might have moved the court to strike out of this petition one of the so-called causes of action, as surplusage; and, had they done so, no doubt the motion would have been sustained. But the court did not err in refusing to compel Whipple to elect on which of the two so-called causes of action set out in his petition he would proceed to trial.

2. The second assignment is that the court erred in admitting in evidence the contract for letting or bailing...