DocketNumber: No. 21812
Citation Numbers: 107 Neb. 551
Judges: Clements, Day, Dean, Dilivorth, Dilworth, Letton
Filed Date: 1/26/1922
Status: Precedential
Modified Date: 9/9/2022
This is an action in replevin, brought by appellee, Benjamin F. Henning, against Ran Stanfield, sheriff of Burt county, Nebraska, and Harry Deaver, appellants, and John A. Singhaus, to recover possession of a threshing-machine and various attachments.
At the conclusion of plaintiff’s direct evidence in the trial court, John A. Singhaus moved that the action be dismissed as to him. This motion was sustained, and the action dismissed as to Singhaus, and proceeded against the other two defendants.
When both sides had rested, the plaintiff moved the •court for- an instructed verdict in his behalf. This motion the court sustained, and so instructed the jury.. The •only question before this court is as to whether the evi■dence warranted such action on the part of the trial •court.
It appears from the evidence that appellant, Harry Deaver, in July, 1918, entered into a contract with the
Deaver then commenced an action against the company to recover the amount of cash paid by him on the machine, including the freight charges, amounting in all to-$398. The machine was attached as the property of the company. Thereupon Henning commenced this action-in replevin, and the machine was turned over to him upon his giving the proper bond, and Avas by him taken-away.
It is insisted that Henning is not a bona fide purchaser; that he Avas the agent or servant of the company, and that the purchase of the machine Avas for the sole benefit of the company. The sole question, there
We have carefully considered the evidence, and are satisfied that the trial court could not properly have done otherwise than instruct the jury to return a verdict in favor of the plaintiff. The evidence on the part of plaintiff, showing a bona fide purchase on his part, was clear and positive, while the evidence attempting to show otherwise could only be drawn by inference from circumstances proved, which were not inconsistent with the bona fide intention of the plaintiff in making the pur-' chase, and which were not sufficient to constitute such a conflict of evidence as to demand a determination by a jury.
The evidence shows that the Sachse-Bunn Company, agricultural implement dealers at Sioux City, Iowa, were the agents who sold the machine to Deaver for the Minneapolis Threshing Machine Company, and conducted the proceedings for the foreclosure of the mortgage thereon. Appellee lived in Le Mars, Iowa, and was engaged in the work of repairing tractors. He did all that kind of work which was required by the Sachse-Bunn Company. At the same time he did similar work for others. He had an arrangement with the Sachse-Bunn Company that he could do his own work at their place of business. He was employed by that firm to go to Tekamah and assist in the sale of the machine to Deaver at that place, which he did in part. He went to Tekamah with one of that firm to attend the sale. He bid $800 for the machine, and, being the highest bidder, secured the machine. He gave his check in payment for same, which was after-wards cashed, and the machine was shipped to Le Mars, Iowa, in the car ordered by the Sachse-Bunn Company before the sale. They turned the car over to him, and also furnished him the necessary bonds required in the litigation herein. En route he diverted the .car to Cherokee, Iowa, where the Sachse-Bunn Company had a branch house. The attorney for appellants discovered
These are the circumstances which are relied upon to show that the appellee is not a bona fide purchaser. They are not sufficient. The inferences to be drawn from them are not irreconcilable and inconsistent with appellee being the actual bona fide purchaser of the machine, and do not present such a conflict of evidence that should be left to a jury to decide.
The trial court in ruling on the motion for an instructed verdict very fully and properly stated the situation, Avhen it said:
“In this case there is no dispute whatever that Mr. Heaver bought a machine, and there is no dispute in the evidence that he bought a machine for a substantial sum of money Avith certain warranties which have not been fulfilled. He was dissatisfied with the machine after making payment of $300 on account of the machine, and $98 for freight, total $398. In testing the machine he found it would not meet the warranties and he was dissatisfied and he asked the concern who delivered it to him to put it in shape so it could be used. They^ made attempts to do that, but were unable so to do, and there is evidence tending to show that he turned it back to them; that is, tendered.it back and offered to return it to Tekamah to the place where he got it, and left it subject to their orders at his place. Later the machine was brought into Tekamah and stood there for some time, and the company, evidently not being satisfied to accept tender of the machine back and cancel the indebtedness on it, foreclosed their mortgage on it. It was sold to the plaintiff in this case. Now, there is no doubt that, if the evidence in this case were such as in the case that was brought here by Mr. Heaver against the Minneapolis
We find no error in the proceedings in the district court, and the judgment is
Affirmed.