Romberg v. Hughes
| Decision Date | 06 January 1886 |
| Citation | 26 N.W. 351,18 Neb. 579 |
| Parties | ALBERT ROMBERG, PLAINTIFF IN ERROR, v. M. J. HUGHES, DEFENDANT IN ERROR |
| Court | Nebraska Supreme Court |
ERROR to the district court for Cuming county. Tried below before POST, J., sitting for CRAWFORD, J.
Reversed.
M McLaughlin and N. H. Bell, for plaintiff in error.
Charles J. Green, for defendant in error.
In August, 1882, Ludwig and Franze Herse rented the farm of the plaintiff for four years, commencing on the 1st day of November, 1882. The terms were that the plaintiff should "furnish one-half of all seed and one-half of all machines," and be liable for one-half of the personal property tax and to receive one-half of all the grain raised on the farm, one-half of the increase of live stock, etc. The testimony shows that the plaintiff had two brothers in the neighborhood where he resided, and some or all of them had employed the Herses, for some time prior to the execution of the lease, to work on their respective farms. The Herses were in straitened circumstances, and this fact was well known to the plaintiff. In November, 1882, the plaintiff sold a large quantity of personal property at auction, the terms of sale being cash for all sums of $ 5 or under, and on sums in excess of $ 5, promissory notes with an approved surety was to be given, said notes to be due in one year with interest at 8 per cent. At this sale the Herses were the highest bidders for two horses, the harness for the same, and a lumber wagon and other property, in all amounting to from $ 800 to $ 1,000. The Herses were unable or at least did not obtain a satisfactory surety to sign their note and consequently no note was given; but the Herses claim that the plaintiff at the time of the sale well knew that they could not give security, and that he waived it, as they were on his farm, and the horses, wagon, and harness in controversy were necessary to enable them to carry on the farm. The sale is denied by the plaintiff, who claims that after the failure of the Herses to give properly secured notes that he leased the chattels in question to them. In April, 1883, the Herses abandoned the farm of the plaintiff and sold the horses, harness, and wagon to the defendant for the sum of $ 280 cash. The plaintiff thereupon brought an action of replevin and obtained possession of the property. On the trial of the cause the jury returned a verdict in favor of the defendant, upon which judgment was rendered. There are three questions presented by the record which will be considered in their order:
First, Did the plaintiff sell the property to the Herses either by an absolute sale or conditionally? Upon this point the testimony is conflicting. The plaintiff and some of his witnesses testify that there was no sale, while an equal number testify on behalf of the defendant that the Herses purchased the property and were holding it as owners. The attorney for the defendant contends that if there is any evidence to sustain the verdict it will not be set aside. The rule adopted by this court, however, is that where a verdict is clearly wrong it will be set aside and a new trial granted. Matthewson v. Burr, 6 Neb. 312. Fisk v. State, 9 Neb. 62. Smith v. Evans, 13 Neb. 314. Victor S. M. Co. v. Day, 13 Neb. 408. Gandy v. Poole, 14 Neb. 98. Staman v. State, 14 Neb. 68. Kuhns v. Bankes, 15 Neb. 92. Shapleigh v. Dutcher, 15 Neb. 563. It is unnecessary, however, to invoke the rule in this case, as the testimony is nearly equally divided and is not very satisfactory on either side. That some arrangement was made by the plaintiff whereby the Herses were to retain possession of the property in question was clearly established, and in our view the jury would have been justified in finding a conditional sale--a sale with a condition that the title should remain in the plaintiff until the property was paid for. But under the statute, where such a sale is not evidenced by writing signed by the vendee, and a copy thereof filed in the office of the county clerk of the proper county, it is not valid against a purchaser from the vendee in actual possession. Comp. Stat., Chap. 32, § 26. If there was a conditional sale this was not done, and the defendant having so far as the evidence shows purchased without notice, is entitled to protection. The evidence covers 288 pages, and it would subserve no good purpose to review it at length. It is so nearly equally balanced that this court cannot say that the verdict is wrong.
Second That the court erred in permitting one T. M. Franse, an attorney, to testify to communications made by the...
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