W. J. Perry Live Stock Comm'n Co. v. Barto

• Citation: 92 N.W. 762,3 Neb. [Unof.] 654
• Parties: W. J. PERRY LIVE STOCK COMMISSION CO. v. BARTO ET AL.
• Decision Date: 19 November 1902
• Court: Nebraska Supreme Court

3 Neb. [Unof.] 654

92 N.W. 762

W. J. PERRY LIVE STOCK COMMISSION CO.

v.BARTO ET AL.

Supreme Court of Nebraska.

Nov. 19, 1902.

Commissioners' opinion. Department No. 3. Error to district court, Sheridan county; Westover, Judge.

“Not to be officially reported.”

Action by the W. J. Perry Live Stock Commission Company against J. M. Barto and others. Judgment for defendants, and plaintiff brings error. Affirmed.W. W. Wood and Allen G. Fisher, for plaintiff in error.

C. Patterson and Albert W. Crites, for defendants in error.

ALBERT, C.

This is an action in replevin, brought to recover the possession of 600 head of native ewes and 500 head of native lambs, in which the plaintiff claimed a special property by virtue of a chattel mortgage. At the close of the testimony the court directed a verdict for the defendant Barto, and gave judgment accordingly. The plaintiff brings error.

In the mortgage under which the plaintiff claims the property is described as follows: “600 head of native ewes from one to four years old, ave. weight 100 pounds, and all branded with one of the following brands, thus: (M. (D) (>) on back; also 500 head of native lambs, average weight above fifty-five pounds, and all branded thus: (>) on shoulder or hip. The above described sheep are now located and must be kept on our ranch 10 miles south of Gordon, Nebraska, until in a marketable condition; and when removed must be shipped to the W. J. Perry Live Stock Com. Company, So. Omaha, Nebraska.”

The principal error complained of is the action of the district court in directing a verdict. In directing a verdict the court proceeded on the theory that the mortgage was void for uncertainty of description of the property covered thereby. The plaintiff contends that there is evidence to the effect that the mortgagor had no other sheep or lambs on the ranch answering the description given in the chattel mortgage, and that the description, therefore, is sufficiently certain. But this contention is not borne out by the record. The evidence not only fails to show there were no other sheep and lambs answering such description, but conclusively shows the contrary. This is an action for the recovery of specific personal property. The plaintiff is not entitled to recover unless it is shown by a preponderance of the evidence that he is entitled to the possession of the specific property claimed. So long as the description is so indefinite and uncertain that it is impossible to...