Runge v. Brown
| Decision Date | 12 April 1888 |
| Citation | 37 N.W. 660,23 Neb. 817 |
| Parties | GUSTAVE RUNGE, PLAINTIFF IN ERROR, v. JOHN L. BROWN, DEFENDANT IN ERROR |
| Court | Nebraska Supreme Court |
ERROR to the district court for Cheyenne county. Tried below before HAMER, J.
REVERSED AND REMANDED.
Heist & Raynor, for plaintiff in error, on fraudulent misrepresentations, cited: Allen v. Addington, 7 Wend. 10. 11 Id., 375. Goings v. White, 33 Ind. 125. Clark & French v. Tennant, 5 Neb. 556. Humphrey v. Merriam, 32 Minn. 197. Fourth instruction. Hall v. Johnson, 41 Mich. 288. Saunders v. Hatterman, 2 Ired., 32. Franklin v. Holle, 7 Mo. App., 241. Instructions given by court. Ballard v. State, 19 Neb. 619. Dunbier v. Day, 12 Id., 607. Wasson v Palmer, 13 Id., 378. Parker v. Fisher, 39 Ill 164. Action not maintainable. Neild v. Burton, 49 Mich. 53. Thompson v. Howard, 31 Id., 309. Action barred. Audubon v. Excelsior Ins. Co., 27 N.Y. 218. White v. Bank, 6 Ohio 530. 2 Nash. Pl. and Pr 1070.
G. M. Lambertson and James W. Norvell, for defendant in error. Plea in bar. Freeman Judgt., Secs. 260-267. Cheney v. Cooper, 14 Neb. 418. Philpott v. Brown & Ryan, 16 Id., 387. Pomeroy Rem., Sec. 572. Cooley Torts, 91, 94. Instructions. Cooley Torts, 490, 491. Mead v. Bunn, 32 N.Y. 275. Eaton v. Winnie, 20 Mich. 156. Williams v. Bates, 15 Neb. 566. Ernst v. R. R., 35 N.Y. 28. Bishop Contr., 661, 667. Starkweather v. Benjamin, 32 Mich. 302.
This action was instituted in the district court of Cheyenne county, and was in the nature of an action for deceit.
It is alleged in the petition that, on the 14th day of August, 1884, defendant in error was the owner of a flock of sheep, consisting of 2,296 head; that on or about said day, one Philip Musheid applied to plaintiff to purchase said flock of sheep, the purchase to be made principally on time; that defendant in error was unacquainted with the character and financial standing of said Musheid, and was by him referred to plaintiff in error for information thereon, and that, in accordance with said reference, he applied to plaintiff in error for such information; that at said time plaintiff in error knew of such reference; that at that time plaintiff in error well knew the financial standing and condition of Musheid; that he was insolvent and unfit to be trusted, and was not entitled to credit for any amount, but that he falsely and fraudulently, in answer to the questions propounded by defendant in error, represented the financial standing of Musheid as good--stating that he was the owner of a certain ranch, being a section of land on which Musheid then resided, situated about two and one-half miles west of the town of Sidney, and that said Musheid had been offered $ 18,000 for the said ranch; that he was also the owner of a large number of sheep and other valuable property, and had large sums of money due him, which he would receive within a short time thereafter; that the promissory notes of said Musheid, to the amount of $ 3,000, were negotiable at the banks, at Sidney, at regular banking rates of discount, or to any other person having money to invest in such property; that he made such representation as to the standing of Musheid as induced defendant in error, who relied thereon, to sell to said Musheid said flock of sheep for the sum of $ 3,144, $ 144 of which was paid in cash, and for the remaining $ 3,000 the said Musheid executed and delivered to defendant in error two promissory notes--one for $ 1,000, due in four months, the other for $ 2,000, due in one year after date. It is alleged that, at the time, said Musheid was not in good financial standing, and was not the owner of the ranch, or of the section of land referred to, upon which he then lived, nor was he the owner of any land whatever. Neither was he the owner of any sheep or other stock, nor had he the money due him, as stated by plaintiff in error, but that the said Musheid was absolutely insolvent, without property or credit, and without any financial standing at the banks, at Sidney or elsewhere, and of all of which plaintiff in error had full knowledge. That aside from the $ 144 cash money paid by Musheid, he had wholly failed to pay any part of the purchase price of said sheep, and that at the time of the bringing of the action, as well as at all times prior thereto, since before the execution of the said notes, said Musheid was wholly insolvent, and that defendant in error was likely to lose and would lose the amount of his claim, whereby he was damaged in the sum of $ 3,475, for which judgment was demanded against plaintiff in error.
The answer of plaintiff in error consisted--First, of a general denial of all the allegations contained in the petition, excepting such as were substantially admitted therein. Second, as a plea in bar of the defendant's recovery, the answer contained the allegations, that defendant in error had caused to be instituted against the said Musheid an action, in the district court, upon the $ 1,000 note referred to, and had obtained a judgment thereon for the full amount of principal and interest, and that no action had been taken by defendant in error since the rendition of said judgment to enforce the collection thereof. Third, that on the 16th day of November, 1885, defendant in error instituted an action in the district court against the said Philip Musheid and plaintiff in error, for the recovery of the $ 2,000 represented by the other promissory note referred to; that it was alleged in the petition that the sale of the sheep was made to the said Musheid and plaintiff in error; that they were jointly interested in the purchase of said sheep, and that the said plaintiff in error falsely and fraudulently represented that the said Musheid was solvent, and fully able to pay all claims which he would contract and agree to pay; and that the plaintiff, relying upon such representations, agreed to accept the note of the said Musheid, for the sum of $ 2,000--judgment being demanded against both parties; that to this petition Musheid answered, setting up a defense, and plaintiff in error filed a demurrer. Afterwards, but before trial, defendant in error dismissed his action as to plaintiff in error, and proceeded alone against Musheid, recovering a judgment for the full amount due on said note, but that no effort had been made to enforce the same by execution or otherwise. It is insisted that the judgment whereby the suit against plaintiff in error was dismissed is a bar to the action in this case, and the same is so pleaded.
By his reply, defendant in error denied all the allegations of the answer, except the fact of the recovery of the judgments referred to; but, as to them, the legal effect as a bar to this action was denied.
A jury trial was had, which resulted in a verdict and judgment in favor of defendant in error. Plaintiff in error seeks a reversal thereof, by proceedings in error to this court. A number of questions are presented by the petition in error and brief of plaintiff in error, which we deem it unnecessary to notice, for the reason that, in our view of the case, a new trial must be had, and in which the questions presented are not liable to again arise.
The testimony of the witnesses upon the trial, in so far as the evidence for defendant in error extended, is conflicting, and so far as that conflict is concerned, we shall have nothing to say. But upon examining the bill of exceptions, we find an entire absence of proof that defendant was misled by the alleged representations of plaintiff in error. Plaintiff in error, in his testimony, denied absolutely the making of any representations as to the financial standing of Musheid. Every statement of fact testified to by defendant in error in that behalf was flatly and unequivocally contradicted by plaintiff in error in his testimony. We are therefore required to examine the testimony of defendant in error alone, for the purpose of ascertaining whether such testimony, if believed by the jury in its entirety, would support the verdict. This testimony may fairly be stated to be, that on the 13th day of August, 1884, plaintiff in error stated to defendant in error that he could sell the sheep to Musheid; that Musheid was good, that he had a lot of sheep and cattle and horses, and had a ranch that was worth $ 18,000; that he had been offered that sum for it; that Musheid could not pay much cash, but he would pay it in three or four months; that afterwards, defendant in error sold the sheep to Musheid, taking his notes for the $ 3,000, as stated; that in conversation with Musheid, in making the trade, Musheid stated that his notes were good at the bank, but in case they were not he could make them good. The notes were taken and the sheep delivered. But when defendant in error presented the notes at the bank for discount, he was informed that Musheid was insolvent and the notes were absolutely worthless. It appears from the testimony that Musheid was the step-father of plaintiff in error; that the ranch referred to as having been owned by Musheid, belonged to plaintiff in error; and there is sufficient to justify the jury in finding that the personal property upon his ranch, upon which Musheid was living, also belonged to plaintiff in error; and that plaintiff in error was fully aware of Musheid's financial condition. But there is no proof that the representations alleged to have been made by plaintiff in error were relied upon by defendant in error, and induced him to make the sale referred to. Upon this point we think the authorities are substantially all one way. If defendant in error sold the sheep to Musheid, upon his own judgment, and wholly uninfluenced by the alleged statements of plaintiff in error, it is clear that such statements could not result in...
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