Russell v. Rosenbaum
| Decision Date | 08 November 1888 |
| Citation | 40 N.W. 287,24 Neb. 769 |
| Parties | RUSSELL v. ROSENBAUM ET AL. |
| Court | Nebraska Supreme Court |
In a motion for a new trial, a general assignment that the court erred in giving each of the instructions given to the jury is too general, and such an assignment will not be considered in the supreme court.
An action was brought by plaintiff as the assignee of a claim against a railroad company for rebates and overcharges, and which the railroad company admitted to be due. A third party, by intervention, claimed the fund, and asked judgment therefor. Upon the trial, plaintiff proved the contract between his assignor and the railroad company, the shipment, and the amount due thereon. There was nothing in the evidence (in which was no conflict) to show that the intervenor was entitled to the money. The verdict of the jury, however, was in his favor. It was held that the verdict could not stand.
No question as to the legality of the contract between the shipper and the railroad company was presented by the answer of the intervenor, but, upon the contrary, he sought to obtain the benefit of the contract, and obtained a judgment in his favor. It was held that he could not afterwards be heard to insist upon the illegality of the contract.
Error to district court, Lancaster county; FIELD, Judge.
Action for the recovery of overcharges of freight by James D. Russell against the Chicago, Burlington & Quincy Railroad Company. Rosenbaum Bros. intervened, claiming the fund, and obtained judgment therefor. Plaintiff brings error.S. P. Davidson, for plaintiff in error.
Mason & Whedon, for defendants in error.
The original action was brought in the district court of Lancaster county, by plaintiff against the Chicago, Burlington & Quincy Railroad Company, to recover certain overcharges of freight or rebates. The principal allegations of the petition were that, on and prior to the date named, McLure & Griffin were engaged in buying and shipping grain from Elk Creek to Chicago; that the charges of the railroad company for the transportation of grain over its lines were 30 cents per hundred pounds, but the agreement was that when McLure & Griffin should present to the officers of the company the expense bills, showing the amount paid, the railroad company would return to them 10 cents per hundred pounds of the amount so paid for hauling; that they had transported large quantities of grain over the company's line to Chicago, and that the amount due McLure & Griffin upon said contract was $556.86; that McLure and Griffin had, for a valuable consideration, assigned the claim to plaintiff, but that the railroad company had refused to pay the amount due. To this petition the railroad company filed its answer, admitting that certain rebates were to be paid to McLure & Griffin, but that they were to be allowed on the presentation of expense bills showing the shipment, and that those bills had not been presented by McLure & Griffin to plaintiff; that they were in the hands of Rosenbaum Bros., of Chicago, who held the same against defendant. All of the allegations of the petition not admitted were denied, and the court was asked to take such action as would protect the railroad company from being compelled to make a second payment of the amount in case judgment should be rendered against it in favor of plaintiff. Rosenbaum Bros. were made parties defendant, whereupon they filed an answer to plaintiff's petition, alleging that the contract of the railroad company was that upon presentation of the expense bills it would pay to the party entitled thereto 10 cents per hundred pounds, referred to in the petition, and that they were entitled to the rebate. It is also alleged that the assignment to plaintiff was made for the purpose of defrauding them, and was without consideration and void; that McLure & Griffin were indebted to them at the time of the assignment, and which indebtedness had never been paid. The reply of plaintiff was a general denial. A trial was had to a jury, which...
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