Hendrix v. Lummus & Webb

Atkinson, J. 1. Several grounds of the motion for new trial complain of the charge wherein the judge instructed the jury to the effect that if they should find that defendant Webb delivered the mules to 'the plaintiffs to be credited on the note at an agreed value, both defendants would be liable for the balance due on the note, after allowing such credit; and another charge to the effect that if the mules were delivered by Webb, but that the value was not agreed upon, both defendants would be liable for the difference between the market value of the mules and the amount specified in the note. These portions of the charge proceed upon the theory that whatever Webb did with respect to the mules would be binding on Hendrix, though he may not have authorized or participated in the transaction. According to the evidence, Hendrix did not do either. The relation of landlord and tenant existed between them, but he was not a general partner with Webb. If it could be said that the form of the note, and the evidence relative to the circumstances attending the purchase of -the mules, constituted the defendants joint owners of the mules, this, without more,, could not confer power upon one of them to contract away the interest of the other, notwithstanding the object of -the sale might have been to pay the purchase-price of the property for which both defendants were jointly, and severally liable. 1 Schouler on Personal Property, § 163; Perry v. Granger, 21 Neb. 579 (33 N. W. 261). The charge improperly instructed the jury as to the effect of a sale of defendant Hendrix’s property by his landlord without his consent; and also concluded him on the question of a release on account pf increased risk, if the jury should adopt the plaintiffs’ theory that he was a mere surety. For the reasons indicated, the charge did not properly apply the law to the case. It is unnecessary .to discuss any possible remedies that the plaintiffs might, hqvq by attachment, foreclosure, or otherwise. , . 2. • As the judgment will be reversed on account of error in the charge, it is unnecessary to deal with the general grounds .of the motion for new trial, further than to say that the verdict was not demanded by the evidence..... Judgment reversed. All the Justices concur.