Standiford v. M. H. Green & Company

• Decision Date: 17 February 1898
• Docket Number: 7774
• Citation: 74 N.W. 263,54 Neb. 10
• Parties: WILFORD STANDIFORD, SHERIFF, v. M. H. GREEN & COMPANY
• Court: Nebraska Supreme Court

74 N.W. 263

54 Neb. 10

WILFORD STANDIFORD, SHERIFF, v. M. H. GREEN & COMPANY

No. 7774

Supreme Court of Nebraska

February 17, 1898

ERROR from the district court of Antelope county. Tried below before ROBINSON, J. Reversed.

REVERSED AND REMANDED.

R. R Dickson and N. D. Jackson, for plaintiff in error.

M. F Harrington and John H. Mosier, contra.

OPINION

IRVINE, C.

One W. A. Westfall was formerly engaged in the mercantile business at Butte, in Boyd county, and being indebted to M. H. Green & Co., he executed to them a chattel mortgage on his stock of goods, ostensibly made to secure notes evidencing that indebtedness. The goods were then attached by Standiford, who was sheriff, at the suit of other creditors of Westfall, and Green & Co. replevied. By agreement of the parties the cause was transferred to Antelope county for trial. There was a verdict and judgment for the plaintiff.

Among the instructions was one given at the request of the defendant, to the effect that if at the time the mortgage was given the plaintiffs and Westfall secretly agreed that possession was to be taken of the goods, that plaintiffs should sell sufficient to satisfy their own claim, and thereafter continue to sell and apply the proceeds to the payment of other debts of Westfall; or if there was a secret agreement that the property left after paying plaintiffs' claim was to be held by them for the benefit of Westfall's creditors, then the mortgage was void and the jury should find for the defendant. No exception was taken to the instruction. Westfall and his wife both testified that the mortgage was given in pursuance of such an agreement as was outlined in the instruction, and their testimony on this subject is not contradicted. We need not inquire whether the instruction was correct in law. It was given, and it was the duty of the jury to obey it. The verdict was rendered in manifest disregard of the instruction, and is for that reason contrary to law. In Aultman v. Reams, 9 Neb. 487, 4 N.W. 81, the court said: "Whether right or wrong, it was the duty of the jury to respect and obey the instructions of the court, and for their failure to do so the verdict should have been set aside; and it was error for the district court to refuse to do so." And in Omaha & R. V. R. Co. v. Hall, 33 Neb. 229, 50 N.W. 10, the following language was used "It is not necessary to decide, nor do I, whether the law is correctly given in...