Weber v. Whetstone

• Decision Date: 03 January 1898
• Citation: 73 N.W. 695,53 Neb. 371
• Parties: WEBER ET AL. v. WHETSTONE.
• Court: Nebraska Supreme Court

53 Neb. 371

73 N.W. 695

WEBER ET AL.

v.WHETSTONE.

Supreme Court of Nebraska.

Jan. 3, 1898.

Syllabus by the Court.

1. Before error can be predicated upon the failure of a district court to instruct the jury on some particular feature of a case, the party complaining must have, by a proper instruction, requested the court to instruct upon such feature.

2. One who feeds and takes care of live stock in pursuance of a contract therefor with the owner has a lien on such stock to secure his recompense for such feed and care. Comp. St. c. 4, art. 1, § 28.

3. An agister cannot be deprived of his lien upon live stock, except by his voluntary relinquishment thereof, or by such conduct on his part as estops him from asserting it.

4. The taking by the owner of live stock from the possession of his agister, without the latter's consent, does not devest his lien.

5. If a lien exists against live stock, for its feed and care, a purchaser of such stock is charged with notice of such lien. That he purchased such stock for value, without actual notice of such lien, affords him no protection against the same.

Error to district court, Dawes county; Bartow, Judge.

Replevin by Weber Bros. against Edward Whetstone. Judgment was rendered in favor of defendant, and plaintiffs bring error. Affirmed.C. Dana Sayrs and John S. Murphy, for plaintiffs in error.

E. S. Ricker, for defendant in error.

RAGAN, C.

This is an action in replevin, brought to the district court of Dawes county by Weber Bros., for certain cattle. The defendant, Edward Whetstone, claimed that he was entitled to possession of the cattle, and had an agister's lien thereon to secure a compensation of $20 agreed to be paid him by the owner of the cattle for herding, feeding, and caring for the same. The trial resulted in a verdict and judgment in favor of Whetstone, and Weber Bros. prosecute error.

1. The first argument is that the court erred in giving to the jury the following instruction: “The jury are instructed that as a general rule of law the purchaser of personal property, in good faith, for value, where delivery of the property accompanies the purchase, is protected against the claims of third parties; but that the owners of stolen property have a right to pursue the same, and recover it, wherever, and in whosoever's possession, it may be found, regardless of the circumstances under which such possession may have been acquired. So, if property rightly in the possession of any person, and where the law makes such possession the basis of a lien, is, over his protest, and forcibly, taken from him,--not necessarily with force and arms, but in such a manner as the person in possession could not prevent,--the possessor's right would not thereby be lost; and, under such a statute as the one quoted from in No. 5 of these instructions, purchasers would be put upon inquiry, before they can be protected, as innocent purchasers, from the assertion of such lien.” The criticism upon this instruction is the reference of the court therein to the right of the owner of stolen property to reclaim it. Counsel correctly say that there was no evidence in this case that any of the property in controversy had been stolen. The evidence shows that the owner of these cattle employed Whetstone to herd and take care of them, and for that purpose put them in his possession, and agreed to pay him for herding them $20; and while the cattle were so in Whetstone's possession the owner sold them to a...