Union State Bank v. Hutton

Sullivan, .J. George E. Hutton, who was plaintiff below, alleged in his petition that he was the owner of a bay mare which the defendant, the Union State Bank, unlawfully seized and converted to its own use. The answer was a general denial coupled with a plea of estoppel by conduct amounting to an actual or constructive fraud. The jury found in favor of the plaintiff for the sum of $22.36, and judgment was rendered on the verdict. In the fourth instruction the court said to the jury that if George E. Hutton was the owner of the mare at the time she was taken from his possession by the agents of the bank, their verdict should be for the plaintiff. Of this instruction no complaint was made in the motion for a new trial; and it is not assigned for error here. Under these circumstances we have no authority to review it. Whether right or wrong, it is the .law of the case and the jury were bound to render their verdict in obedience to it. Aultman v. Reams, 9 Nebr., 665 487; Omaha & R. V. R. Co. v. Hall, 33 Nebr., 229; World Mutual Benefit Ass’n v. Worthing, 59 Nebr., 587. The evidence warranted the jury in finding that the plaintiff was in fact the owner of the mare. The verdict can not, therefore, be condemned while the instruction under which it was given stands unchallenged. There is another reason why the judgment should be affirmed. On the question of estoppel the defendant had the burden of proof. It was required to show, among other things, that it altered its position — that it lost some advantage, incurred expense, paid out money, parted Avith property, assumed an obligation or did, or failed to do, some other act or thing by which it was prejudiced — in reliance upon plaintiff’s conduct and in ignorance of his rights. Burke v. Utah Nat. Bank, 47 Nebr., 247; State v. Bank of Commerce, 61 Nebr., 22; Lingonner v. Ambler, 44 Nebr., 316; 11 Am. & Eng. Ency. Law [2d ed.], 436. It Avas shoAvn conclusively at the trial that before the bank sold the mare it was informed of Hutton’s claim, of ownership. When it obtained this information does not appear, but we find nothing in the record upon which to ground an inference that it was obtained after, rather than before, the right to plead an estoppel had arisen. The judgment is Affirmed.