Williams v. McConaughey
| Court | Supreme Court of Nebraska |
| Writing for the Court | NORVAL |
| Citation | 58 Neb. 656,79 N.W. 549 |
| Decision Date | 08 June 1899 |
| Parties | WILLIAMS v. MCCONAUGHEY. |
58 Neb. 656
79 N.W. 549
WILLIAMS
v.
MCCONAUGHEY.
Supreme Court of Nebraska.
June 8, 1899.
1. Instructions should be confined to the issues in the case.
2. An erroneous instruction is not cured by merely giving another on the same subject stating the rule correctly.
Error to district court, Hamilton county; Wheeler, Judge.
Action by Y. W. Williams against A. J. McConaughey. Judgment for defendant, and plaintiff brings error. Reversed.
[79 N.W. 549]
Hainer & Smith, for plaintiff in error.
W. A. Prince and Howard M. Kellogg, for defendant in error.
NORVAL, J.
This was replevin by Y. W. Williams to recover a stock of merchandise seized by the defendant, as sheriff, under certain writs of attachment issued in favor of the creditors of Thomas Upton. The verdict was for the defendant, and to reverse the judgment entered thereon is the purpose of this proceeding. There was evidence introduced on behalf of plaintiff tending to show that he was engaged in the mercantile business at the town of Bromfield, and on July 7, 1893, being the owner of the stock of goods in controversy, sold the same to his brother-in-law, Thomas Upton, for $1,213.08; that of this sum $200 was at the time paid in cash, and Upton gave Williams his promissory note for the balance due in three months, without interest; that Upton took possession of the stock, and carried on the business until December 26, 1893, and at that time, being unable to pay plaintiff, he sold the stock to Williams for $1,295.07, its full invoice price, receiving $236 cash, his said note for the sum of $1,013.08, and a book account of $46. Possession of the goods was given plaintiff. While Upton was carrying on the business, he became indebted to the attaching creditors for goods purchased. The resale of the goods to plaintiff is assailed as being fraudulent, and the testimony upon that issue is conflicting. It was ample to sustain a verdict for either party. This is conceded by the plaintiff.
It is insisted that the court erred in giving instruction No. 16 on its own motion, a copy of which follows: “The defendant charges fraud in the transactions of the sale and delivery of the stock of goods in controversy by the plaintiff to his brother-in-law, Thomas Upton, and the sale and transfer of said stock of goods by Thomas Upton back to the plaintiff. The burden of proof is upon the defendant to establish that one or both of such transactions were fraudulent, by a preponderance of the evidence,...
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J. W. Sanders Cotton Mill, Inc. v. Moody, 33989
...in support of one of them, the entire instruction is erroneous. Branson on Instructions (2 Ed.), p. 163, citing Williams v. McConaughey, 58 Neb. 656, 79 N.W. 549. [195 So. 688] We do not decide the precise point last mentioned. We proceed, in spite of it, to a further discussion of the prop......
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Knight v. Denman
...with it, and can only produce confusion and misunderstanding. Railroad Co. v. Fox, 56 Neb. 746, 77 N. W. 130;Williams v. McConaughey, 58 Neb. 656, 79 N. W. 549;Knapp v. Railroad Co., 57 Neb. 195, 77 N. W. 656;Jensen v. Halstead (Neb.) 85 N. W. 78. Moreover, in the case at bar the instructio......
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Reed v. State
...Rep. 450;Bergeron v. State, 53 Neb. 752, 74 N. W. 253;Chicago, B. & Q. R. Co. v. Oyster, 58 Neb. 2, 78 N. W. 359;Williams v. McConaughey, 58 Neb. 656, 79 N. W. 549. In Bergeron v. State, supra, the court said: “The Attorney General has suggested that instructions should be construed as a wh......
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Raynor v. City of Wymore
...subject stating the rule correctly, because the jury would be left in doubt as to which paragraph was correct. Williams v. McConaughey, 58 Neb. 656, 79 N. W. 549;Henry v. State, 51 Neb. 150, 70 N. W. 924, 66 Am. St. Rep. 450;Carson v. Stevens, 40 Neb. 112, 58 N. W. 845, 42 Am. St. Rep. 661;......
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J. W. Sanders Cotton Mill, Inc. v. Moody, 33989
...in support of one of them, the entire instruction is erroneous. Branson on Instructions (2 Ed.), p. 163, citing Williams v. McConaughey, 58 Neb. 656, 79 N.W. 549. [195 So. 688] We do not decide the precise point last mentioned. We proceed, in spite of it, to a further discussion of the prop......
-
Knight v. Denman
...with it, and can only produce confusion and misunderstanding. Railroad Co. v. Fox, 56 Neb. 746, 77 N. W. 130;Williams v. McConaughey, 58 Neb. 656, 79 N. W. 549;Knapp v. Railroad Co., 57 Neb. 195, 77 N. W. 656;Jensen v. Halstead (Neb.) 85 N. W. 78. Moreover, in the case at bar the instructio......
-
Reed v. State
...Rep. 450;Bergeron v. State, 53 Neb. 752, 74 N. W. 253;Chicago, B. & Q. R. Co. v. Oyster, 58 Neb. 2, 78 N. W. 359;Williams v. McConaughey, 58 Neb. 656, 79 N. W. 549. In Bergeron v. State, supra, the court said: “The Attorney General has suggested that instructions should be construed as a wh......
-
Raynor v. City of Wymore
...subject stating the rule correctly, because the jury would be left in doubt as to which paragraph was correct. Williams v. McConaughey, 58 Neb. 656, 79 N. W. 549;Henry v. State, 51 Neb. 150, 70 N. W. 924, 66 Am. St. Rep. 450;Carson v. Stevens, 40 Neb. 112, 58 N. W. 845, 42 Am. St. Rep. 661;......