Storz v. Finklestein

• Decision Date: 10 April 1896
• Docket Number: 6308
• Citation: 66 N.W. 1020,48 Neb. 27
• Parties: GOTTLIEB STORZ ET AL. v. LENA FINKLESTEIN, ADMINISTRATRIX, ET AL
• Court: Nebraska Supreme Court

66 N.W. 1020

48 Neb. 27

GOTTLIEB STORZ ET AL. v. LENA FINKLESTEIN, ADMINISTRATRIX, ET AL

No. 6308

Supreme Court of Nebraska

April 10, 1896

ERROR from the district court of Douglas county. Tried below before KEYSOR, J.

REVERSED AND REMANDED.

Lake Hamilton & Maxwell, for plaintiffs in error:

Permitting a reply to be filed during a trial is a ground for continuance where new issues are raised. (Taylor v Heffner, 4 Blackf. [Ind.], 387*.)

Mere knowledge of the seller that the buyer intends to put the goods to an unlawful use, where they may be lawfully used will not make the sale illegal or prevent the recovery of the purchase price. (Tiedeman, Sales, sec. 294; Thimes v. Stumpff, 33 Kan. 62; Bowman Distilling Co. v. Nutt, 34 Kan. 724; Benjamin, Sales [4th Am. ed.], sec. 791; Newmark, Sales, sec. 364; Webber v. Donnelly, 33 Mich. 469; Gambs v. Sutherland, 59 N.W. [Mich.], 652; Tegler v. Shipman, 33 Iowa 195; McKinney v. Andrews, 41 Tex. 363; Dater v. Earl, 3 Gray [Mass.], 482; Curtis v. Leavitt, 15 N.Y. 15, 235; Tracy v. Talmage, 14 N.Y. 162; Kreiss v. Seligman, 8 Barb. [N. Y.], 441.)

By wrongfully suing out attachment is meant, not the omissions, irregularities, or informalities in issuing the same, but that the party resorted to it without sufficient grounds. (Eaton v. Bartscherer, 5 Neb. 471; Sharpe v. Hunter, 16 Ala. 765; Raver v. Webster, 3 Iowa 502; Pettit v. Mercer, 8 B. Mon. [Ky.], 51.)

An action for wrongful attachment, in the absence of a statute, can be maintained only on the attachment bond. (Tallant v. Burlington Gas-Light Co., 36 Iowa 262; Palmer v. Foley, 71 N.Y. 108; Drake, Attachments [7th ed.], sec. 726.)

References to question relating to measure of damage: Goebel v. Hough, 26 Minn. 257; Clark v. Marsiglia, 1 Den. [N. Y], 317; Lord v. Thomas, 64 N.Y. 109; Nebraska City v. Nebraska City Hydraulic Gas-Light & Coke Co., 9 Neb. 343; Bishop, Contracts, sec. 842.

Estabrook & Davis, contra, cited: Struthers v. McDowell, 5 Neb. 493; Rudolf v. McDonald, 6 Neb. 165; Shepherd v. Hills, 11 Exch. [Eng.], 55; Tilson v. Warwick, 4 B. & C. [Eng.], 962; Hart v. Barnes, 24 Neb. 782; Haverly v. Elliot, 39 Neb. 201; Storz v. Finklestein, 46 Neb. 577.

Chas. E. Clapp, also for defendants in error.

NORVAL, J. IRVINE, C., not sitting.

OPINION

The facts are stated in the opinion.

NORVAL, J.

This action was brought upon an attachment bond by Louis M Finklestein against Gottlieb Storz and Joseph D. Iler, as principals, and Theodore Olsen, as surety upon said bond, to recover damages for the alleged wrongful suing out of a writ of attachment and levying it upon certain personal property of the plaintiff. The petition contains the usual averments. Storz & Iler, in their answer, admit the bringing of the attachment suit, the filing of an affidavit for attachment, the issuing of the writ of attachment, the levying thereof on plaintiff's property, and that the court discharged the attachment. All other allegations in the petition they deny. They also aver that the affidavit for attachment was made in good faith, and that they had probable cause to believe the allegations therein contained were true. The answer further pleads as a set-off that plaintiff is indebted to Storz & Iler in the sum of $ 388.43, with interest thereon, on an account for beer sold and delivered to plaintiff at his request, for which amount, with interest, they pray judgment. The defendant Olsen answered by a general denial of each allegation contained in the petition. After the jury had been impaneled a reply was filed by the plaintiff. The first and third paragraphs thereof were stricken out by the court, and the defendants filed a general demurrer to the second paragraph, which was overruled. There was a verdict in favor of the plaintiff for the sum of $ 999.92, and the defendants' separate motions for a new trial were overruled and judgment rendered upon the verdict. Afterwards, on the death of the plaintiff, the judgment was revived in the name of Lena Finklestein, his administratrix, and John O. Malcom, his administrator. The defendants jointly and severally prosecute error.

The first error assigned is based upon the ruling of the trial court permitting the plaintiff to file a reply to the answer of Storz & Iler after the jury had been sworn. The matter of granting or refusing permission to answer pleadings, or to file pleadings out of time, or during the trial, rests largely in the legal discretion of the trial court, and this court will not interfere with a ruling in that regard, unless there has been an abuse of discretion. This is the settled law of this state. (Hale v. Wigton, 20 Neb. 83, 29 N.W. 177; Brown v. Rogers, 20 Neb. 547, 31 N.W. 75; Ward v. Parlin, 30 Neb. 376, 46 N.W. 529; Blair v. West Point Mfg. Co., 7 Neb. 146.) The discretion of the court below was not improperly exercised in allowing the reply to be filed. Immediately upon the filing of the reply, the defendants asked the court to continue the cause, for the reason that they were unable to proceed to trial on account of the reply putting in issue the averments in their answer, which request was denied by the court. In this, it is claimed, there was error, and section 147 of the Code of Civil Procedure is cited to sustain the contention. This section provides: "When either party shall amend any pleading or proceeding, and the court shall be satisfied, by affidavit or otherwise, that the adverse party could not be ready for trial in consequence thereof, a continuance may be granted to some day in term, or to another term of court." This section contemplates that a cause may be continued where a party, in consequence of the amending of the pleading of his adversary, is unable to go to trial; but the party seeking the postponement must satisfy the court of the existence of grounds therefor by affidavit or other testimony. An application for continuance is addressed to the discretion of the trial court, and it must appear that there has been a clear abuse thereof in denying it, else the ruling will not be disturbed in the appellate court. (Nebraska Loan & Trust Co. v. Hamer, 40 Neb. 281, 58 N.W. 695; Kansas City, W. & N. R. Co. v. Conlee, 43 Neb. 121, 61 N.W. 111; Stratton v. Dole, 45 Neb. 472, 63 N.W. 875.) The reply pleaded affirmative defenses to the set-off set forth in the answer, it is true; but the record fails to disclose that any showing was made in the support of the motion for a continuance. The court below could not know without such showing that the defendants were unprepared to meet the issues tendered by the reply. If a postponement of the trial was desired to meet the evidence which it was expected the plaintiff would adduce in support of the averments in his reply, the defendants should have made that fact to appear by proper testimony, giving the names of their witnesses who were absent, the nature of their testimony, and that defendants expected to be able to procure the attendance of such witnesses or their testimony. In the absence of such showing there was no error in refusing the continuance. (Clark v. Carey, 41 Neb. 780, 60 N.W. 78; Home Fire Ins. Co. v. Johnson, 43 Neb. 71, 61 N.W. 84; Corbett v. National Bank of Commerce, 44 Neb. 230, 62 N.W. 445; Dixon v. State, 46 Neb. 298, 64 N.W. 961.)

The next contention is that error was committed in overruling the demurrer to the second paragraph of the reply, which is as follows: "But said plaintiff avers that upon the dates from July 1 to July 9, inclusive; and in the meantime said plaintiff had no license for the sale of malt or spirituous liquors; that such fact was well and fully known to said defendants, and that it was further known and understood between said parties, plaintiff and defendants, that such beer was purchased from said defendants by said plaintiff for the purpose of being bottled and resold by plaintiff; and plaintiff avers by reason of such knowledge and such understanding and such fact such sale was illegal and void and no recovery thereon may be had by said defendants against said plaintiff. And plaintiff further says defendants entered into a written agreement, a copy of which is hereto attached and made a part hereof, whereby said defendants were to participate and profit in said illegal traffic, and did so participate and profit therein." The answer discloses that the account therein pleaded as a set-off, except as to three items, is for beer sold and delivered to the plaintiff between June 30, 1889, and July 10 of the same year. The defendants insist that the facts set up in the reply are insufficient to defeat a recovery for the purchase price of the beer sold between said dates, and numerous authorities are cited in the brief to the effect that the mere knowledge of the vendor that the vendee intended to put the liquors to an unlawful use, or to resell them in violation of the law, is not sufficient to render the sale void or defeat an action brought by such vendor against the vendee to recover the purchase price of such liquors. We do not question the soundness of the adjudications to which the defendants have called our attention. Clearly they are not applicable to the facts before us. The plaintiff does not rely upon the mere knowledge of the defendants that the beer was purchased for resale in violation of the laws of this state. Knowledge of the intended unlawful use is not only set up in the reply, but it is further averred that the beer was sold by Storz & Iler for the purpose that the law should be violated, and that they were to, and did, participate and profit in the unlawful traffic. The averments contained in the reply, if true, were sufficient to defeat a recovery of the purchase price of the beer sold between the dates above specified; hence the demurrer was...