(186 N.W.) DOLD V. MUNSOR et al. (No. 21906.) (Supreme Court of Nebraska. Jan. 26, 1922.) 1. Jury (Syllabus by the Court.) 14(13)-Plaintiff held not entitled to jury trial where only issue was cross-action for specific performance. In this, an action to recover the possession of real estate, to cancel a mortgage thereon executed by defendant, and to quiet the title of plaintiff, in which action the defendant admits plaintiff's title, but prays for specific performance of an alleged contract of sale to defendant, to quiet the title in him, plaintiff is not entitled to a trial by jury as a matter of right, and it was not error to refuse it. 16 2. Evidence 185(1) - Witnesses Where plaintiff denies that a written contract, which defendant testifies is in his possession, ever existed, or that he ever had such a paper, such a denial furnishes sufficient foundation for the introduction of secondary evidence of the contents of the paper, without the service of a notice to produce the paper, or the issuance and service of a subpoena duces tecum. 3. Appeal and error 895 (2) Supreme Court will consider trial court's findings in determining which witnesses are most worthy of belief. Although the issues of fact in an equity case are required to be tried de novo upon appeal to this court, where the evidence is conflicting, this court will consider the fact that the trial court had the opportunity of seeing and hearing the witnesses, and will give consideration to this fact and to its findings in determining which witnesses are most worthy of belief. the claims of Munsor and the mortgagee. Defendants admit that the legal title to the property is in the plaintiff, but the crosspetition of Munsor alleges that by an arrangement made in 1915, verbally, and afterwards merged into a written contract, Dold agreed to furnish money to buy a lot and erect a store building thereon for the use and benefit of Munsor, and that Munsor was to pay the cost of the lot, the building and other improvements, and to pay interest at the rate of 7 per cent., per annum of this amount, payable monthly, and that on January 1, 1921 provided $500 or more had then been paid on the purchase price Dold was to execute a deed to the property to Munsor, and take back a mortgage to secure the unpaid balance of the purchase price and interest. It is alleged that the written contract was never delivered to Munsor, and that he paid $800 on the contract price, and made $400 worth of improvements on the property. He prays for an accounting, that he may have specific performance of the contract, and that his title be quieted. The The facts are somewhat peculiar. reporter's note states that Munsor is an Armenian who speaks very broken English. Plaintiff's testimony is to the effect that he leased the building to Munsor at a monthly rental of 7 per cent. upon the cost price; which rent amounted to $15.20 a month at first, and $15.70 after additional improvements had been put upon the building, and that he paid rent until July, 1919, and has paid no rent since. The testimony of Munsor is that Dold offered to furnish the money to buy a lot and erect a building for his use as a store, to be paid for as alleged in the cross-petition. Munsor and Ayoub, a clerk employed by him, a fellow Armenian or Assyrian, who Appeal from District Court, Sherman seems to be much more accomplished in the County; Hostetler, Judge. Action by Emil Dold against Erson Munsor and another to recover possession of a town lot, praying for an accounting and specific performance of a contract. Judgment for defendants, and plaintiff appeals. Affirmed. Lamont L. Stephens, of Loup City, and Clifford L. Rein, of Lincoln, for appellant. Aaron Wall, J. S. Pedler, and R. H. Mathew, all of Loup City, for appellees. Heard before LETTON, DAY, and DEAN, JJ., BEGLEY and HOSTETLER, District Judges. LETTON, J. This action was brought to recover possession of a certain lot in the town of Ashton, to set aside a certain mortgage upon the premises executed by the defendant Munsor to Swenson Brothers Company, and to quiet plaintiff's title as against use of English than Munsor, both testify that For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes ey paid. Ayoub testified that in July, 1919, Munsor was about to sell the property to one Gehring, but Dold refused to make a deed; that afterwards Dold offered to sell the building to Gehring, and that Munsor objected, saying it was his building, and the sale was not consummated on that account; and that after that Dold did not call for the interest, and no interest has since been paid. On rebuttal Dold denied any such conversations, and the agent with whom Munsor testified he had some negotiations for the purchase of the lot denied this, and said that all of his transactions as to the lot were with Dold. The court decreed specific performance of the contract, gave Dold a first lien for the balance found due, and provided that in default of payment the contract be foreclosed, and the premises sold to pay this and the amount due the other cross-petitioner. [3] The evidence is in hopeless conflict. The store was broken into and the books in which Munsor testifies the cash payments were entered were stolen. It is impossible that all the testimony of Ayoub can be true, because it is, in part, self-contradictory. The written document which he produced, and upon which he testified he indorsed the payments made on the principal at the time they were made, bears internal evidence that the entries were not made at that time. The strongest evidence in favor of Munsor is that furnished by the 23 receipts in the handwriting of Dold, which recite the payment of interest "on store building," or words of like effect, by Munsor. The receipts are in accordance with the terms of the alleged contract. It seems incredible that, if the relation between the parties was merely that of landlord and tenant, the receipts would not be for "rent," instead of for "interest." An attempt is made to explain this by saying that 7 per cent. upon the cost of the building and lot was to be the monthly rental; but, when considered in connection with other circumstances in the record, this is not a satisfactory explanation. The trial court had the witnesses before him, and was better able to judge of the truthfulness of their testimony than this court. Giving consideration to this, we have reached the same conclusion as to the facts which that court did. thermore, defendants admit that plaintiff is the owner of the legal title, and that no money had been paid him since July, 1919. Under these admissions, plaintiff would have been entitled to a judgment on the pleadings, and there would be nothing for a court or jury to pass on, were it not for the equitable issues raised by the cross-petition. Plaintiff was not entitled to a jury trial. [2] It is assigned that the decree is not supported by sufficient evidence, the main contention in this respect being that the court admitted secondary evidence of the contents of the written contract, when no notice had been served upon plaintiff to produce it. The record shows that when the objection was first made it was sustained, but that when it became clearly apparent to the court that plaintiff denied that any such contract had ever been in existence, that if it ever did exist it was in his custody and control, and that the service upon him of a formal notice to produce it would have been fruitless, the court properly permitted the witness to state its terms. In this there is no error. It has repeatedly been held that a person is excused from making a tender where a tender would be fruitless. The same principle applies to the giving of notice to produce a paper, to a party to the suit who testifies and contends that such a paper was never in existence. The law does not require a vain thing, and such a denial furnishes sufficient foundation for the introduction of secondary evidence of the contents of the alleged contract. Mack v. Mack, 94 Neb. 504, 143 N. W. 454; Bickley v. Bickley, 136 Ala. 548, 558, 34 South. 946; Foster v. Pointer, 9 Car. P. (Eng.) 718; Hamilton v. Rice, 15 Tex. 382; Augur Steele Axle & Gearing Co. v. Whittier, 117 Mass. 451. The judgment of the district court is Affirmed. LYONS v. DONAHUE-RANDALL & CO. (No. 21871.) (Supreme Court of Nebraska. Jan. 26, 1922.) (Syllabus by the Court.) 1. Factors 21-May rely on custom and usage in selling consignment of live stock. A commission merchant has the right to rely and act upon custom and usage in selling live stock consigned to him. 2. Factors 43-In action for damages an instruction disregarding broker's custom and usage held error. [1] Several errors are assigned that must be mentioned. The refusal of a jury trial is alleged as error. The petition clearly states a cause of action for equitable relief. It prays that the defendants be required to set up any claim or interest they may have in the premises; that said claim be decreed to be void; that the apparent lien on the Swenson Brothers Company mortgage be removed; that the mortgage be canceled; and that the title be quieted in the plaintiffs. Fur- ty; Begley, Judge. Held, it was reversible error for the trial court to give instruction No. 12, disregarding the custom and usage of the defendant commission merchants. Appeal from District Court, Douglas Coun (186 N.W.) Action by Martin L. Lyons against Dona- that defendant paid for two cattle for which hue-Randall & Co., a corporation. Judgment it failed to account. This, of course, should for the plaintiff, and defendant appeals. Re- be paid. versed and remanded. Crofoot, Fraser, Connolly & Stryker, of Omaha, for appellant. R. T. Coffey, of Omaha, and F. J. Byrd, of Gothenberg, for appellee. Heard before MORRISSEY, C. J., and LETTON, ROSE, DEAN, ALDRICH, DAY, and FLANSBURG, JJ. [1, 2] In our opinion there was reversible error in the court's instruction No. 12, given on its own motion. Among other things, it permitted the jury to assess damages "sustained by reason of the negligence or gross carelessness of defendant, if any, in failing to accept bids or sell said cattle on the market when received." The record shows there was no negligence in refusing to sell the cattle when received, that the offer refused was to buy the cattle before they had been fed and watered. As we have before indicated, it is the custom and usage of the commission merchants to feed and water live stock before selling to offset to some extent the shrinkage caused by shipping. The defendant had the right to and should use its best judgment in making a sale and in refusing the offer made, and in so doing it acted according to the custom and usage of the business and exercised sound judgment. In view of this discussion, we are of the opinion that instruction No. 12, as given, was reversible error. ALDRICH, J. This is an action at law to recover damages from Donahue-Randall & Company of Omaha, commission merchants engaged in the selling of live stock for hire. On the 31st of October, 1918, the plaintiff shipped to defendant 136 head of cattle for sale. They arrived in due course of time in fair condition and were accepted by the defendant as usual for sale. On or about November 1, 1918, the defendant firm notified the plaintiff that the cattle had been sold, but it was afterwards ascertained that this was a mistake and plaintiff was then notitied. The cattle had not been sold. The plaintiff immediately notified Randall, a member of the defendant firm, that he wanted the cattle sold at once. It appears of record that the defendant had an offer of $7.75 a hundredweight before these cattle had opportunity to have any drink and feed whatever. This offer was respectfully refused. It may be stated here that it is contrary to custom and general usage of the stock-(Supreme Court of Nebraska. Jan. 13, 1922.) yards to sell live stock without an opportu nity to water and feed them. The cause is reversed and remanded. STATE ex rel. FARMERS' MUT. INS. CO. (Syllabus by the Court.) relator does not establish clear legal right. A writ of mandamus should not be issued if a relator does not establish a clear legal right This commission merchant into whose 1. Mandamus 10-Writ should not issue if hands these cattle had been consigned, and in whose possession and care they were, received no proper offer, as he thought, and so called plaintiff on the telephone and notified him that the market had slumped, and that he could not afford to have these cattle sold on such a market, and that they ought to be sent over to Ralston to be fed until such time as the market got better, to which the plaintiff replied that he should use his best judgment. But plaintiff also in course of this discussion insisted that the cattle be sold, that it was not the first time that he had taken a loss and that it probably was not the last. The defendant went ahead, using his best judgment, as he supposed, and shipped the cattle to Ralston and ran up a bill of about $1,200 for the care and feed of these cattle. Later defendant had the cattle brought back to Omaha and sold them for considerably less than the original offer. There is a square conflict between the testimony of the plaintiff and the defendant Randall on the important facts. In this it is evident that the jury believed the plaintiff and it is not for us to disturb that finding. It does not anywhere appear in the record A person who desires to present a bill of exceptions of the rulings of the district court upon a motion for a new trial is not required to procure a transcript from the official court reporter of affidavits filed in support of the motion, or to obtain his certificate to the same. 3. Exceptions, bill of 40(5)-Refusal of extension of time for presenting bill of exceptions held not an abuse of discretion. Where an affidavit presented in support of a motion for a new trial is on file in the office of the clerk of the district court, and a copy was in the possession of the party desiring a bill of exceptions settled, and this was the only evidence necessary to be embodied in the bill, it is not an abuse of discretion by the trial court to refuse to allow an extension of time, over the statutory 15 days, for the presentation of a bill of exceptions. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Application by the State, on the relation of the Farmers' Mutual Insurance Company of Nebraska, for a writ of mandamus against Leonard W. Colby, District Judge. Writ denied. of diligence, and not otherwise, to extend the time herein allowed." Rev. St. 1913, § 7880. The question presented is whether the decision of the judge as to the lack of exercise of due diligence is sustained by the evidence, or Doyle, Halligan & Doyle, of Lincoln, for is such a gross abuse of discretion as to warrelator. rant the issuance of the writ. E. O. Kretsinger and Sackett & Brewster, all of Beatrice, for respondent. Heard before LETTON, DAY, and DEAN, JJ., and TEWELL and BLACKLEDGE, District Judges. No evidence was preserved at the time the judgment was rendered. The only evupon the motion for a new trial was an afidence presented to the court at the hearing fidavit by T. J. Doyle, one of the attorneys for plaintiff. This affidavit, which is very brief, sets up in substance the facts hereinLETTON, J. This is an original proceed-before stated as to the taking of the default ing in this court to obtain a writ of manda-judgment and other relevant facts. In the mus commanding Leonard W. Colby, judge of letter ordering the bill of exceptions it is the district court for Gage county, to extend said: the time for setting a bill of exceptions in the case of Farmers' Mutual Insurance Company v. Nellie Gumaer, Mary Gumaer, and George Lippold for an additional 40 days. The facts seem to be that a default judgment was rendered on May 28, 1921, in said case against the insurance company on crosspetitions, in the absence of plaintiff's attorneys, and without notice to them of the date the case would be tried. A motion for a new trial was filed on May 31. The court passed upon this motion on June 4, in the absence of plaintiff's attorneys, and the term of court adjourned sine die the same day. On June 11, in reply to a letter, respondent wrote to plaintiff's attorneys that his recollection was that the motion for a new trial had been overruled "a week or more ago" and advised them to write to the clerk of the court for information. On June 15 the attorneys were informed by the clerk of the district court that the motion had been overruled on June 4. They at once ordered a bill of exceptions from the court reporter. They were unable to obtain the proposed bill of exceptions from the reporter until after the expiration of 15 days after the adjournment of the term. Application was then made to respondent to allow additional time to prepare and present the bill of exceptions, which was denied on the ground that the attorneys had not used due diligence. There being no appeal allowed by statute from such an order, this proceeding was instituted. [1] This is not a proceeding in equity, and whether plaintiffs are entitled to relief in such a forum is not before us. Mandamus is a purely legal remedy, and unless relator has a clear legal right to the writ it will not be granted. The statute as to extensions of time for the preparation of bills of exceptions provides: "In cases where a party seeking to obtain the allowance of a bill of exceptions has used due diligence in that behalf, but has failed to secure the settlement and allowance of the same as herein required, it shall be competent for the affidavit filed May 31, 1921, of T. J. Doyle, "Please include in this bill of exceptions the in support of the plaintiff's motion for a new trial. "I am inclosing you herewith a copy of said affidavit, so you can see what it is. You can either use this one, after comparing it with original on file in your court, or make one yourself, as you desire. Only be sure and put this affidavit in the bill of exceptions so the affidavit can be presented in the supreme court. "Court adjourned June 4, 1921. If you cannot get this bill of exceptions to us, within the 40 days, so it can be served, kindly see that the forty days' extension of time is taken." [2] Formerly the complaining party prepared his own bill of exceptions to the rulings of the court from his notes of the evidence, and presented them to the adverse party, tendering the evidence as he understood it to have been given. The opposite party then tendered such amendment as he deemed proper, and, if there was any dispute between them, this was settled by the trial judge. The legislation creating the office of court reporter in no wise changed or interfered with the former law relating to the allowance and presentation of bills of exceptions, and this is still a legal method. Since the creation of the office of official court reporter, it has become customary to preserve all the evidence and present it as the bill of exceptions, and there is a tendency on the part of courts to require the bill of exceptions to contain all the evidence. The former practice, however, is recognized in the rules of this court with reference to the preparation of a "case stated," and there is much to be said in favor of the old practice requiring only enough of the evidence to present to a reviewing court, clearly, the ruling complained of. In this case a copy of the only ev idence used at the hearing on the motion for a new trial, viz. the affidavit of Mr. T. J. Doyle, was in the hands of the relator in time enough to have presented it on June 20, which was the last day, the fifteenth day (186 N.W.) of June the trial judge had informed the attorneys that his recollection was that the motion for a new trial had been passed upon a week or more previous to that time, though they were not aware that court had adjourned sine die on the 4th. Relators seem to be of the opinion that a reporter's certificate is necessary to a bill of exceptions. In State v. Ambrose, 47 Neb. 235, 66 N. W. 306, Commissioner Irvine said, with respect to the reporter's notes: "The notes are not public records. The reporter's certificate to a transcript thereof does not authenticate them so as to permit their introduction in evidence. Parties in preparing and the judge in settling a bill of exceptions are not bound by the reporter's transcript. There is, indeed, nothing to require parties to resort to such transcript in the preparation of a bill. The settlement of a bill Bests finally upon the judge's determination of what occurred at the trial; and when the accuracy of a proposed bill is properly challenged, the judge must settle the matter in accordance with the truth, and not blindly in accordance with a reporter's transcript." It has become customary in some of the district courts to allow 40 days time as a matter of course, and relator's attorneys no doubt relied upon this custom, but it is only Appeal from District Court, Lancaster County; Stewart, Judge. Proceeding by Girard H. Way by Charlotte J. Way, his mother and next friend, against the Georgia Casualty Company, insurer, for personal injury resulting while plaintiff was in the employ of his father, C. F. Way. Judgment for plaintiff, and the insurer appeals. Affirmed. Brogan, Ellick & Raymond, and Casper Y. Offutt, all of Omaha, for appellant. H. N. Mattley, of Lincoln, for appellee. Heard before MORRISSEY, C. J., and LETTON, ROSE, DEAN,. ALDRICH, DAY and FLANSBURG, JJ. In a motor ROSE, J. This is a proceeding under the workmen's compensation law. cycle accident plaintiff broke his right arm and his right leg and fractured his skull March 3, 1921. He claims he was at the time engaged in the service of his father, C. F. Way, in the capacity of an employee of the Elm Park Grocery, in Lincoln, at $25 a week. Defendant is charged with liability as an insurer. The claim was presented to the compensation commissioner and rejected. Plaintiff appealed to the district court, where he was awarded $645, including $200 He was also allowed for hospital expenses. From this judg $10 a week for 11 weeks. ment defendant has appealed. Two questions are presented by the appeal: The first is that the evidence is wholly insufficient to sustain a finding that plaintiff was an employee of his father within the meaning of the workmen's compensation law; the view of defendant being that plaintiff and his father were partners in the grocery business. The second point is that the evidence fails to show the injuries arose out of and in the course of the employment of plaintiff, who, as contended by defendant, was not on duty at the time of the accident. These propositions were clearly presented in the brief of defendant and were ably argued at the bar, but it is nevertheless the unanimous opinion that there is a reasonable (Supreme Court of Nebraska. Jan. 26, 1922.) view of the evidence in which it sustains the (Syllabus by the Court.) Master and servant 418(6)-District court's findings of fact in compensation case conclu sive. findings of the trial court on both issues of fact. The appeal, therefore, is controlled by the familiar rule that findings of the district court in determining issues of fact Findings of the district court in determining in proceedings under the workmen's comissues of fact in proceedings under the work-pensation law (Laws 1913, c. 198) will not men's compensation law will not be disturbed be disturbed on appeal unless clearly wrong. on appeal unless clearly wrong. Affirmed. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |