Bennett v. Warner

74 N.W. 261, 53 Neb. 780, 1898 Neb. LEXIS 485

• Court: Nebraska Supreme Court
• Decided: February 17, 1898
• Docket: No. 7845
• Status: Published

Opinion

Sullivan, J.

Under a peremptory direction of the trial court the jury in this case returned a verdict for Warner, who was plaintiff below. To secure a reversal of the judgment rendered on this verdict Bennett prosecutes error to this court. The facts are these: In 1893, and for several years before that time, H. G. Gwynne was engaged at Poeatello, Idaho, in buying hides and wool, which he shipped for sale to his uncle, D. H.' McDaneld, who ivas engaged in the commission business in Chicago, Illinois. Asa result of their dealings Gwynne became indebted to McDaneld in a sum claimed by the latter to be in the neighborhood of $4,000. A misunderstanding in regard to this indebtedness having arisen between the parties, their business relations were terminated some time prior to July, 1893. Some time in October of the same year Gwynne left Pocatello for Chicago, instructing his manager, McCarty, before starting, to call on Warner for any money he might need during his absence. Acting on his instructions, McCarty did soon after obtain from Warner $40 at one time and $50 at another time. A little later, on October 24, McCarty again applied to Warner for an advancement. Warner, however, refused to further respond in the way of a loan, but proposed to buy a car-load of hides if McCarty had authority to sell. McCarty thought he possessed the necessary power to make the sale and accordingly made it, taking in payment Warner’s check for the price agreed upon, less the $90 previously loaned. The hides were then consigned in Warner’s name to John Miller & Co., a Chicago commission firm. While at Omaha, in transit, they were seized by Bennett, sheriff of Douglas county, as the property of Gwynne, under an order of attachment, in an action commenced against him by D. H. McDaneld. The alleged wrongful seizure of this property is the basis of the judgment of which the plaintiff in error complains.

Warner had been at one time in the employ of'Gwynne in the hide and wool business, but; having been admitted to the bar in 1893, he then engaged, and has since continued, in the practice of his profession at Pocatello. He was the friend and legal adviser of Gwynne. He knew the latter was indebted to McDaneld, and that, on account of some misunderstanding in regard to that indebtedness, their business relations ha*d been discontinued. He had talked with McDaneld about the matter and promised to use his good offices with Gwynne to bring about an adjustment of the differences between them. He knew that in the previous July, McDaneld had sued Gwynne and attached a car-load of hides owned by him and then in transit from Pocatello to the city of New York. 1-Ie knew that Gwynne was worth about $20,000 and that McDaneld was his only creditor. It does not appear that he had ever before advanced Gw,; line any money, or that he had bought any hides of him or anybody else during the course of his professional career. Neither does it appear why Gwynne expected Warner to act as his bank during his absence or why it became necessary to resort to him for loans with which to conduct his ordinary business transactions. The business of Gwynne rvas to buy hides at -Pocatello and sell them in the eastern markets, and it does not appear that either he or McCarty had ever before sold hides in the market where they were purchased. The defendant below tried the. case on the theory that the sale to Warner was colorable merely and made to prevent .an attachment of the hides by McDaneld in Chicago or while in transit to that city. This theory was not without evidential support and should have been given to the jury under proper instructions. In the light of the evidence detailed, it ivas for the jury to say whether the transaction in question was an honest or corrupt one. (Connelly v. Edgerton, 22 Neb. 82; Fitzgerald v. Meyer, 25 Neb. 77; Riley v. Melquist, 23 Neb. 474; Davis v. Scott, 22 Neb. 154.) The judgment of the district court is reversed and the cause remanded.

Reversed and remanded. •