Rogers v. Buettgenback
| Decision Date | 19 November 1926 |
| Docket Number | 25301 |
| Citation | 211 N.W. 168,114 Neb. 834 |
| Parties | FAYETTE F. ROGERS ET AL., APPELLANTS, v. WILLIAM BUETTGENBACK ET AL., APPELLEES |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Kearney county: LEWIS H BLACKLEDGE, JUDGE. Reversed, with directions.
REVERSED.
J. L McPheely, for appellants.
J. H Robb and C. P. Anderbery, contra.
Heard before MORRISSEY, C.J., ROSE, DEAN, DAY, GOOD and THOMPSON, JJ.
On July 31, 1925, the plaintiffs brought this suit in equity to enjoin the defendants, William Buettgenback and Renus Kargo, sheriff of Kearney county, from ordering an execution to be issued on a certain judgment obtained by Buettgenback against the plaintiffs and from levying an execution upon the plaintiffs' property, or any part thereof. As Kargo has no interest in the suit except in his official capacity, we will, for convenience, refer to Buettgenback as defendant.
The plaintiffs set out the pleadings upon which the judgment against them in favor of the defendant was based, and also alleged that they had paid the amount due upon the judgment except the sum of $ 700; that they held the defendant's note, dated August 13, 1921, due in one year from date, no part of which had been paid; that they tendered the note to defendant in payment of the judgment, but he refused to accept the same; and that the defendant was insolvent. The plaintiffs prayed that the amount of the note with interest be credited upon the judgment; that the judgment be canceled; that the defendant be enjoined from proceeding to collect the judgment, and for "such other relief as justice and equity may require." The answer tendered an issue which will sufficiently appear in the further discussion of the case. The trial resulted in a judgment denying the plaintiffs the relief prayed and dismissing their cause of action. From this judgment the plaintiffs have appealed.
The record shows that on November 30, 1921, Buettgenback, as plaintiff, brought an action in the district court for Kearney county against the plaintiffs in this action, as defendants, in which he recovered a judgment for $ 857.65. In that action the plaintiff, among other things, alleged in substance that on August 13, 1921, he purchased from defendants a threshing machine engine under a warranty by them that the engine was in good mechanical condition; that it would operate the plaintiff's separator and would perform the service for which it was sold; that, relying upon the representation made by the defendants, he paid them $ 500 in cash and executed his note in favor of the defendants for $ 700, dated August 13, 1921, and due in one year, secured by a chattel mortgage on the engine; that the engine proved defective and would not propel the separator; that within one month from the date of the purchase the plaintiff returned the engine to the defendants, stating that he rescinded the contract and demanded that the purchase price be returned to him, which was refused by the defendants. The plaintiff also alleged that he suffered special damages in an attempt to make the engine work; that during a period of five days he paid for wages, coal and labor the sum of $ 175 in an effort to make the engine work, and was also deprived of the profits in the sum of $ 325. The plaintiff sued to recover $ 1,200, the purchase price of the engine, and $ 500 as special damages.
The amended answer of the defendants admitted that they sold the engine to plaintiff for $ 1,200; that $ 500 was paid in cash and a note of $ 700 taken for the balance; denied that any warranties or representations were made by them; and alleged that, when the plaintiff returned the engine to the defendants, it was agreed between the parties that the same should be sold at private sale, and if the engine brought more than was necessary to pay the note that the surplus should be paid to plaintiff. As a cause of action against the plaintiff, the defendants alleged that they sold and delivered to plaintiff, at his order and request, oil for the use of said engine, upon which there was a balance due and unpaid of $ 92.35. They prayed that plaintiff's action be dismissed and that they have judgment against plaintiff for $ 92.35.
The reply denied the allegations of the amended answer which were inconsistent with the allegations of the petition.
Upon the issues thus presented, a trial was had to a jury, who, upon very conflicting testimony on the disputed issues, returned a verdict as follows:
The court refused to accept this verdict as not being responsive to the issues and instructions of the court and directed the jury to retire for further deliberation. Thereafter the jury returned a verdict as follows:
"We, the jury, duly impaneled and sworn in the above entitled cause, do find for the plaintiff for the sum of $ 857.65."
Judgment was entered on this verdict. From this judgment, defendants appealed to this court and the judgment was sustained. The plaintiff in the action, being apparently satisfied with the judgment, took no appeal.
The record shows that, during the trial of the first case, the $ 700 note was received in evidence and exhibited to the jury over the objection of...
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