Fredrickson v. Schmittroth ( 1906 )

Dueeie, O.

October 31, 1902, Schmittroth purchased an automobile from Fredrickson for the sum of $1,000, and executed a promissory note for that amount due April 30, 1903, upon Avhich note the defendant Mengedoht became surety. The note by its terms provided that title to the automobile should remain in Fredrickson until the full amount of the purchase price was paid. Schmittroth claimed that the automobile was not giving satisfactory service, and it was placed in the possession of the Utah Automobile Company at Salt Lake City for the purpose of being overhauled and adjusted, Fredrickson doing this work through the above company as his agent. While the machine was in the possession of the Utah Automobile Company, the evidence tends to show that Mengedoht became alarmed lest • he should have the note to pay, and made Fredrickson the following written proposition: “Mr. H. E. Fredrickson, Omaha, Neb. Dear Sir: In regard to the machine sold to Mr. Schmittroth on note which bears my signature, I ask you to have the machine shipped here and put in running order. If Mr. Schmittroth is unwilling to take the machine .after it has been made to run and will not pay for it, I will take the machine and pay for it, and take up the note which was given for the machine, and also pay the freight from Salt Lake City to Omaha. It is understood that the note is not to draw any interest. Fred Menge-doht.” Fredrickson instructed the company in Salt Lake City to ship the machine to Omaha, and then a short time after its arrival here he repaired the machine, and there is evidence tending to show that after testing it Mengedoht Avas satisfied Avith its operation, and agreed to accept and pay for it. This suit was originally commenced June 3, 1903, against Schmittroth and Mengedoht upon the note given for the machine. The case was passed from term to term until after the machine was shipped to Omaha and repaired, and until Mengedoht finally refused to take and pay for the machine, after which an amended petition was filed by the plaintiff, the amendment setting up a cause of action against Mengedoht upon his Avritten proposition aboAre set forth and the acceptance of the same by the plaintiff. At the conclusion of the evidence, the court directed a verdict for the defendant Schmittroth, and it further directed a verdict in favor of the plaintiff and against Mengedoht for damages in the sum of 6 cents. Judgment Avas entered upon these verdicts, from which the plaintiff has appealed.

Both of the defendants filed answers in the case, the answers setting up different and separate defenses. The motion for a new trial was a joint motion, and the order overruling the same is alleged as error. It has long been the settled sule of this court that, where a motion for a new trial is insufficient as to one defendant, it should be overruled. Long v. Clapp, 15 Neb. 417; Scott v. Chope, 33 Neb. 41; Dorsey v. McGee, 30 Neb. 657; McDonald v. Bowman, 40 Neb. 269; Lydick v. Gill, 68 Neb. 273. The district court was of opinion that the contract of sale of the automobile was rescinded by Fredrickson when, on the request of Mengedoht, he ordered the same shipped from Salt. Lake City to Omaha without the consent of Schmitt-roth. In this we think the court Avas correct. He certainly could not reccwer the consideration for the automobile after haying taken possession and while retaining possession thereof. The motion Avas, therefore, properly overruled as to the defendant Schmittroth, and, this being so, under the authorities above cited, we cannot investigate any of the other questions raised by the appellant or reverse the judgment. If the court committed no error in refusing a neAV trial, as it is clear that the judgment must stand if there was no error in denying the motion for a neAV trial, we recommend an affirmance.

Albert and Jackson, CC., concur.

By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is

Affirmed.