Sornborger v. Sanford

• Decision Date: 18 May 1892
• Citation: 52 N.W. 368,34 Neb. 498
• Parties: SORNBORGER v. SANFORD.
• Court: Nebraska Supreme Court

34 Neb. 498

52 N.W. 368

SORNBORGER

v.SANFORD.

Supreme Court of Nebraska.

May 18, 1892.

Syllabus by the Court.

1. Held, that the evidence failed to show that the chattel mortgage under which the defendant claims was executed under duress.

2. That the instructions complained of conformed to the proof on the question of ratification.

Error to district court, Saunders county; POST, Judge.

Replevin by S. H. Sornborger against Whitfield Sanford for the possession of a law library. Verdict and judgment for defendant. Plaintiff brings error. Affirmed.G. W. Simpson and S. H. Sornborger, for plaintiff in error.

J. R. & H. Gilkeson, for defendant in error.

MAXWELL, C. J.

This is an action of replevin, brought in the district court of Saunders county, to recover a law library. The case was before this court in 1889, and is reported in 26 Neb. 295, 41 N. W. Rep. 1102, the judgment of the district court being reversed. On the second trial the jury returned a verdict for the defendant upon which judgment was rendered. The defendant in error claims title under a chattel mortgage. The plaintiff claims that the mortgage was made under duress, and, second, error in certain instructions. The plaintiff, in his brief, expresses regret that he did not have the question of duress specially submitted to the jury. This court, however, is in effect asked to take the place of the jury, and find that there was such duress. It would subserve no good purpose to review the evidence at length. In our view, it falls far short of showing that the mortgage in question was made and delivered under duress. The trial judge, out of an abundance of caution, submitted the question of duress to the jury, but also informed them that the plaintiff could ratify the mortgage. “(10) If a short time prior to the commencement of this action the plaintiff suffered the defendant to take possession of the property in controversy, then knowing that the defendant would incur costs and expenses in advertising the same for sale as mortgaged property, and knowing that the defendant was incurring or had incurred such costs and expenses, and did not then advise the defendant that he claimed the mortgage to be void on account of duress; that if the evidence shows that the defendant did incur such costs and expenses,--under those circumstances, the plaintiff would be estopped or prevented from now claiming that the mortgage is void as to him. On the other hand, if the plaintiff knew nothing...