Uhl v. Robison

Lake, J. We shall consider only those questions noticed by the plaintiff in err.or in his-brief. The first and. second points relied on relate to the exclusion of certain evidence from the jury. Owing, however, to the fact that these matters were not properly presented to the court below in the motion for a new trial, no foundation was laid for their review here. Referring to the motion for a new trial we find the assignment to have been “Because the court erred in excluding proper evidence from the jury, offered by the defendant, to which ruling of the court the defendant at the time excepted.” Such an assignment is too [277] indefinite to be regarded. It wholly fails to bring to the attention of the court the particular testimony referred to as having heen erroneously excluded. "We have ruled so frequently on this sort of assignment, and the proper practice must be so generally and well understood, that a reference to the decisions would seem to be unnecessary. The next error assigned is on the several instructions given to the jury, numbered from one to seven inclusive. Without particularly referring to these instructions here, we will say that, after a careful examination of each of them, we fail to discover any just ground for complaint. So far as th ey go, they undoubtedly state the law of the ca.se correctly. The next assignment is, that the court refused to give certain instructions to the jury requested by the plaintiff in error. The instructions so excluded we have examined with this result. The first one totally ignores the sale of the machine by Brayley to the defendants in error, of which fact the proof was conclusive. By this instruction, had it been given, the jury would have been told, in effect, that notwithstanding such sale the machine was subject to the execution against the property of Brayley under which the plaintiff in error claimed title to it. Such being the scope of the instruction, it would have been error to have given it, and it was properly refused. An instruction which leaves the jury at liberty to disregard a material fact in a case, either admitted or established by the evidence, is erroneous. The second and third of these requests, abstractly considered, were probably correct legal propositions, but they were not applicable to the evidence before the jury, and would have had a strong tendency to mislead them. And the same is true of the fourth proposition, which was simply the eleventh section of the statute of frauds copied entire. [278] In the case of Robison v. Uhl, 6 Neb., 328, where the evidence in all respects was substantially the same as we have here,.it was held that, in view of the situation of the parties with respect to the property sold, and the other circumstances of the case, a formal delivery of possession was unnecessary to complete the sale, and that the want of it was of no significance whatever. The record shows conclusively that Brayley, from whom Robison and Maus purchased the machine, lived in Buffalo, New York, and that the machine was here in Nebraska, under the care and control of the latter as the general agents of the former at the time the sale was made. Under these circumstances we hold that the sale was complete as between the parties to it just as soon as the seller was notified by the purchasers of their acceptance of his offer to sell. And we further hold that, being a completed sale as between the parties to it, it concluded not only them, but every other person, unless shown to have been fraudulent. Lake v. Morris, 30 Conn., 201. The fifth, seventh, and eighth of the instructions refused were wholly unwarranted by the evidence. They imply that there was some evidence from which the jury could infer that Robison and Maus were fraudulent purchasers of the property in controversy, when in fact there was none at all. "We have read the testimony carefully, and fail to discover anything to justify such an inference. These instructions, therefore, were properly refused. The only, point remaining to be noticed is the alleged error of the court in changing the fourth instruction requested by the plaintiff in error. "We have already shown that as presented to the court this instruction was inapplicable to the facts of the case. In lieu of this request, however, the jury were charged that if théy were “ satisfied from the evidence that the sale [279] * * * was a fraudulent transaction * * * * * and that the machine in controversy was the property of James Brayley at the time of the levy under which the defendants purchased,” they should find in his favor. "While this instruction as given was a correct statement of the law on the supposition of there "being evidence from which fraud could be inferred, yet, there being no such evidence, it was more favorable to the plaintiff in error than he was entitled to. He had no cause to complain. On a careful examination of the record on all the points made by the plaintiff in error, we are satisfied that no error was committed for which he is entitled to a new trial. Judgment affirmed.