OMAHA NAT. BANK v. ROBINSON. (Supreme Court of Nebraska. Nov. 17, 1898.) APPEAL-REVERSAL-HARMLESS ERROR-ATTACH

MENT RATIFICATION OF LEVY.

1. The admission of immaterial evidence will, if prejudicial, work a reversal of a judgment. 2. Errors in admission of evidence or giving instructions which were not prejudicial to the rights of the complainant are not cause for reversing a judgment.

3. If, in an attachment in which the goods of a stranger to the suit have been taken and sold under the writ, the plaintiff, with knowledge of the true ownership of said goods, receives the proceeds of the sale, it constitutes a ratification of the levy. Cole v. Edwards, 72 N. W. 1045, 52 Neb. 711, followed.

(Syllabus by the Court.)

Error to district court, Douglas county; Ferguson, Judge.

Action by Edward A. Robinson against the Omaha National Bank. Judgment for plaintiff, and defendant brings error. Reversed.

Hall & McCulloch, for plaintiff in error. Gregory, Day & Day, for defendant in error.

HARRISON, C. J. The firm of Edholm & Aiken was, during a portion of the month of January, 1890, and some years prior thereto, conducting a retail jewelry business in Omaha; and on the 18th of said month the bank, plaintiff in error herein, commenced an action against the firm to recover the amount of an indebtedness of the firm to the bank, and procured therein the issuance of a writ of attachment, which was levied on the stock of jewelry of the firm, inclusive of certain chains, etc., ownership of which was subsequently asserted by the defendant in error herein. At the time of the levy of the writ these particular articles were attached to, or contained in, what are styled in the record "Canton flannel rolls," and were during business hours unwrapped or unrolled, and displayed in stock, and during hours when the store was closed or of nights kept in the safe. Defendant in error claimed that these goods were sent to Edholm & Aiken as samples, or "memorandum goods," or goods on selection, to be examined, such as were chosen to be retained by the customer, and the others returned to the party from whom received, and in whom the title remained until a report was made of the selections. These goods were sold under the levy of the process of attachment, and the proceeds applied in payment of the debt for the enforcement of which the writ had been issued, and the defendant in error instituted this action to recover of the bank their value, and, as the result of a trial of the issues joined, was awarded a judgment.

One of the issues of the litigation was whether the chains, etc., had been sold to Edholm & Aiken, or sent to them on selection; and another was, did the bank actively direct the levy of the writ of attachment, and on these particular goods, or, if not, did

it ratify the act of the officer in making the levy?

One of the alleged errors which is presented for plaintiff in error is in regard to the admission of testimony. In the appraisal of the goods levied upon, a list of the articles was made which covered several pages of the paper used. Some of the pages were numbered and others were lettered, and the ascertainment of the reason for changing from numbers to letters for some of the pages of the inventory was made the subject-matter of interrogatories to a witness for defendant in error. This drew out, in the answers or the answer to the question to which the witness was finally allowed to voice a response, that it was done to separate in the list goods which were supposed to belong to Edholm & Aiken from those that were supposed to be memorandum goods. We have given almost, if not quite, the exact language of the witness, exact in the portions material to our inquiry.

It appears that rumor or information of some sort had come to the deputy sheriff who had the appraisal in charge, and the parties who were called and acted as appraisers, that the goods in flannel rolls might possibly be claimed by a person other than the firm, the defendant in the attachment; and, to preserve in the list the identity of the particular articles, the pages were lettered, to distinguish them from the other pages of the inventory of the general stock, which were numbered. The deputy sheriff gave testimony in the case at bar that they-he and the other parties, appraisers-had no knowledge of probable or possible claims of ownership in a person or persons other than the firm except what was derived from hearsay. The list made during appraisement, its particular arrangement of pages, or their designation by letters or numbers, in whole or in part, or the reason for each or all, were wholly without importance or materiality to the issues on trial, and, by the admission of the testimony of which complaint is made, there was placed before the jury the rumors or hearsay on a vital point of litigated matters, and with a direct bearing on a question as to which there was much to bear out the contention of either party, and it was well calculated to work prejudicially against the rights of the complainant.

It is also urged that there was an error committed in the admission of the testimony of a witness to the effect that the goods, the damages for the wrongful appropriation of which were sought in this action, were not sold to Edholm & Aiken, but forwarded to the firm as samples or on selection, when it appeared that it was doubtful whether the witness had a personal knowledge in relation to the matter, or other than that derived from hearsay. The allowance of this testimony to be given was, we think, probably an error. but, if so, it worked no prejudice to the rights of the complaining party.

At the time of the issuance and levy of the writ of attachment in the suit by the bank against the firm of Edholm & Aiken, or on January 18, 1890, it appeared that D. E. Thompson was either in possession, or claimed the right of possession, of the stock of jewelry under and by virtue of a chattel mortgage executed and delivered to him by the firm, and the sheriff, as was his right, under such cir cumstances, demanded an indemnity bond, and one was given by the bank, which contained a recitation of the reason for its being executed and delivered, i. e. that "one D. E. Thompson claims said stock by virtue of a chattel mortgage, and claims to have had possession at the time said sheriff took possession under said writ." It is also disclosed by the evidence that said bond was executed and delivered prior to any assertion of a claim of ownership of any of the goods by or for the defendant in error. The indemnity bond was offered in evidence for defendant in error, and was received, over the objection for the bank, the ground of the ruling at the time of its reception being stated by the court as follows: "The Court: Well, I will receive it for that one purpose only, as tending or not tending, as the case may be (counsel may discuss that question), whether or not there is any ratification of the act of the sheriff, or authorization by the bank of the act of the sheriff, in attaching the property. That is all,-showing no liability on the bond, but simply the one fact, and it is a matter for the jury to say from all the facts in the case. For that purpose I will receive it."

At the time the bond was given the defendant in error was not claiming any of the property which had been attached. He was not in the contemplation of the parties. The bond was made for the purpose of indemnifying the officer against the claim of Thompson, and cannot be said to have been a ratification of the levy with any other conditions than were then elemental of it and known, or with any other claims than were then existent against it and known. It was established by the evidence that the bank did not give directions in regard to the levy, did not designate any goods upon which it should be made, but that it was delivered to the officer to be levied on the property of Edholm & Aiken. It has been said: "When an officer is directed to serve a writ, and there is a reasonable doubt that the title to the property is in the defendant, the officer may demand an indemnifying bond from the creditor before he levies upon the property, and, if such bond of indemnity is not given, the officer is under no obligation to make a levy on the property. Where the defendant's property in the goods is disputed, the sheriff has a common-law right to require indemnity before seizing the property. When the property which the officer is directed to seize is not in possession of the defendant, but is in possession of a third person, and there is reason to doubt that the defendant owns such property, the sheriff may

lawfully require a bond of indemnity before he makes the attachment. If the property is attached without any controversy as to the title, and is afterwards claimed by a third person, the officer may then demand a bond of indemnity before he proceeds any further." Shinn, Attachm. c. 1, § 203.

It is clear that the bond in question here was not given with a view to any claim of defendant in error to the goods upon which the writ was to be levied; hence it cannot be said that the giving of the bond was, in effect, a direction of a levy on his goods. It was not executed as a part of a specific direction to do something of which the bank had no knowledge. It was asked to be given be cause of the claim, as it stated, of D. E. Thompson, and executed in response to such request. It seems clear that the indemnity bond furnished no evidence to establish a direction by the bank of the levy of the attachment writ on the property of defendant in error, or of a ratification by it of such a levy; hence it was error to admit it, and one well calculated to be harmful to the rights of the plaintiff in error.

It is further argued, in this same connection, that this, if an error, was without prejudice, for the reason that there was undisputed testimony of a demand for defendant in error on the bank to release the levy on these goods. which was refused. The testimony on this point shows a demand on the cashier of the bank, not for a release of the levy, but a surrender of the goods to the attorney for defendant in error. The cashier referred the attorney to the counsel for the bank, with the remark that whatever they did would be all right. A demand was then made on counsel for, not a release of the levy, but again that the goods be given to the attorney for defendant in error, and this was refused, on the ground that the goods could not be delivered to defendant in error, as they were claimed by D. E. Thompson, and the bank would be answerable to him if it gave the goods to a third party. A refusal of a demand of the true owner, and with knowledge of such ownership, to release the levy, would have constituted a ratification. Cole v. Edwards, 52 Neb. 711, 72 N. W. 1045. But not so a refusal of a demand to deliver the goods to the party. But, with full knowledge of the claim of ownership of the goods by defendant in error, the bank applied for an order for their sale, and received it. The sale was made, and it received the proceeds. This, if the ownership was as claimed, would be an adoption or ratification of the act of levy. Cole v. Edwards, supra. This last being true, the error in the admission of the bond was without prejudice.

There is a criticism in the argument of some of the instructions given, the basis of it being that in each the trial court essayed to embrace all elements necessary to a verdict favorable to a designated party, and omitted a material one. If taken literally, and out of the connec

tion in which given, each of the said instruc tions may be said to be open to the objection urged against it; but in view of the circumstances and facts developed in evidence, and when read, as they were, in connection with the other instructions, it hardly seems possible that any one would or could misunderstand them, or fail to catch their true import, and we doubt whether the technical errors committed, the subject of the complaint, could alone be enough to work a reversal of the judgment. We do not deem it best at this time to discuss the sufficiency of the evidence to sustain the verdict. The question of the defendant in error's ownership of the property was a question for the jury, and there was testimony admitted which, we have hereinbefore stated, should have been excluded. The judgment is reversed, and the cause remanded.

1. A verdict on conflicting evidence, approved by the trial court, will not be disturbed in the appellate court.

2. Instructions set out in the opinion examined, and held to be based upon the testimony, and to have fairly submitted the case to the jury.

3. A vendor of real estate sent a deed to a bank, to be by it held until the purchaser should pay the consideration to the vendor, when the bank was to deliver the deed. There were liens against the property, which it took some time to remove. The purchaser deposited the entire consideration with the bank, conditioned that the same should be retained by it, and not paid to the vendor until the liens were discharged. Before the liens were all removed, the bank failed. Held, that the loss fell upon the purchaser.

4. Error in the assessment of the amount due will not be reviewed under an assignment in the motion for a new trial that the verdict is not sustained by sufficient evidence.

5. Excess in the amount of recovery cannot be considered in this court when not assigned as error in the petition in error.

(Syllabus by the Court.)

Error to district court, Lancaster county; Tibbets, Judge.

Action by John W. Edwards against Charles Hammond. Judgment for plaintiff. Defendant brings error. Affirmed.

Lamb & Adams and Davis & Hibner, for plaintiff in error. Harwood, Ames & Pettis, for defendant in error.

NORVAL, J. John W. Edwards brought this action to recover a balance claimed to be due him on certain real estate sold to the defendant. A jury trial resulted in a verdict for the plaintiff for $603.13, for which sum judgment was rendered against the defendant. It is undisputed that plaintiff, a resident of the state of Illinois, sold to the defendant, who resided in Nebraska, a quarter section of land situate in Franklin coun

ty, this state, for the agreed consideration of $2,900, of which sum $25 was paid when the contract was made. A deed to the land in question was executed by Edwards, and sent to the Capital National Bank of Lincoln. Hammond paid in or deposited with said bank the remainder of the purchase money to be by it paid to the vendor when the incumbrances against the premises were removed and title perfected. Edwards has since received the entire consideration, less $500, and the sum of $1.90 deducted from the remittances by the bank to the plaintiff as exchange. The Capital National Bank failed, with the $500 remaining in its hands, and the same has not been paid to either party. The question involved is, who did the bank represent in the transaction? If the money belonged to the plaintiff upon its deposit in the bank, it is obvious there can be no recovery in this case. Plaintiff testified that he sent the deed to the bank, to be delivered by it to the defendant upon the payment of the balance of the consideration to Edwards, and not to the bank. There was also introduced evidence tending to prove that Hammond had control over the money at all times; that a certificate of deposit for the $500 was issued in the name of Hammond, and payable to his order, which was retained by the bank with the title papers, and such certificate was found in the bank vault by the receiver on his taking possession of the assets. From the evidence adduced, including the correspondence between the parties, and between Edwards and the bank, we are persuaded that it was sufficient to sustain the finding that the title to the money was in Hammond, and, the bank having failed while the money remained on deposit therein, the loss was on the defendant. There was more or less conflict in the oral evidence adduced on the trial, and we refrain from disturbing the verdict based thereon.

Error is predicated upon the giving of certain instructions. The fourth reads as follows: "It appears from the evidence that the plaintiff, at the time of the claimed payments, was a resident of, and present in, the state of Illinois, and that the defendant was a resident of, and present in, the state of Nebraska, and the transactions as to the disputed payments were had through the Capital National Bank of Lincoln, Neb. It also appears from the evidence as undisputed that the defendant paid the full amount of the $2,900 into the Capital National Bank; and it also appears from the evidence as undisputed that of such amount the plaintiff did not receive the sum of $500, and that, further, there was deducted from the remittances from the plaintiff the sum of $1.90, charges for exchange." It is insisted that it was prejudicial error to state to the jury that it was undisputed that, of the amount paid by the defendant to the bank, plaintiff did not receive the sum of $500, as it assumed the existence of a fact not established on the

trial. This objection is unsound. It was shown beyond all controversy that the $500 in dispute never reached the plaintiff, and whether it did or not was not in issue in the case; but the question involved was, was the receipt of the money by the bank a payment to Edwards? There was no ground for the jury to infer from this instruction, as argued by counsel for defendant below, that the trial judge regarded the receipt of the $2,900 as not a payment of that sum to plaintiff. The views and impressions of the court upon that point were not given to the jury, but, by other portions of the charge, they were left to draw their own conclusions from the evidence submitted by the respective parties.

Objection is made to the fifth instruction, which declares that "the question at issue in this case is for whom the Capital National Bank was acting in the transaction between the plaintiff and defendant; and, if the bank was acting for the plaintiff, then did the defendant, in paying in the $500 to the bank, pay the same unreservedly so far as he (the defendant) was concerned?” This was an appropriate direction to the jury. There was evidence introduced to the effect that Hammond retained the right to direct the bank as to the disposition to be made of the money it received for the defendant, and that he informed the bank that it should retain the $500 until the title to the property was perfected, so that the money was not paid to the bank unreservedly by Hammond. Plaintiff was advised by the bank of defendant's instructions regarding the withholding a part of the money; but this fact did not constitute the bank Edwards' agent, and prevent him from recovering the money from the defendant. If the latter desired the jury informed as to the meaning of the word "unreservedly," as employed in the fifth instruction, he should have tendered a proper request to charge.

The sixth instruction reads thus: "If you find from the evidence that the plaintiff authorized the Capital National Bank to receive the money for him from the defendant, and sent the deed to the land purchased to be delivered to defendant upon payment of the purchase price, then the bank will be authorized to receive the money from the defendant for the plaintiff, and an unreserved payment by the defendant to the bank of the money in question would be a payment to the plaintiff." The foregoing is assailed for the use of the word "unreserved," it being argued that payment to the bank was pay ment to the plaintiff, although the money was received by the bank upon condition or conditions imposed by the defendant. To this proposition we do not agree. If the pay ment of this money to the bank was condi tional, then plaintiff was not bound thereby, so long as the conditions had not been complied with, notwithstanding the bank was authorized by plaintiff to receive the consideration for the land; since until the defend

ant released all interest in the money, and the plaintiff had the right to demand the same from the bank, there was in law no payment to Edwards. The bank had no right to bind him by accepting a conditional payment. The instruction was not faulty in the particular suggested.

The seventh instruction is criticised by counsel upon substantially the same ground, and no special consideration of this instruction at this time is necessary. If the money had been paid to the bank unconditionally, then there would be ground for argument that, when the bank became insolvent, the loss fell on Edwards, and not upon the defendant. But the jury have found that it was not so paid, and such finding is supported by sufficient evidence. The verdict is in harmony with the instructions given.

We have examined the rulings of the court on the admission of testimony, and find no error therein prejudicial to the rights of the defendant. It would serve no useful purpose to set out in this opinion the rulings complained of, or to state at length our reason for sustaining them.

It is finally argued that the verdict and judgment were for too large a sum, since the jury allowed the amount of exchange charged by the bank on the money remitted Edwards, also interest on the $500 from the date of the contract. It is asserted that interest should have been computed only from the date plaintiff perfected his title. Whether the verdict was excessive or not was not called to the attention of the trial court in the motion for a new trial, and therefore cannot be reviewed at this time. Error in the assessment of the amount due cannot be considered under an assignment in a motion for a new trial that the verdict is not sustained by sufficient evidence. Coal Co. v. Holmes, 36 Neb. 858, 55 N. W. 255. Moreover, there is no assignment in the petition in error relating to the amount of recovery. This alone is fatal upon that point. Oliver v. Railroad Co., 40 Neb. 845, 59 N. W. 351; Beavers v. Railroad Co., 47 Neb. 761, 66 N. W. 821; Barmby v. Wolfe, 44 Neb. 77, 62 N. W. 318; Montgomery v. Bank, 50 Neb. 652, 70 N. W. 239. The judgment is affirmed.

CITY OF LINCOLN v. O'BRIEN. (Supreme Court of Nebraska. Nov. 17, 1898.) MUNICIPAL CORPORATIONS-DEFECTIVE STREETSABUTTING OWNERS-REPAIRING SIDEWALKS --STATEMENT OF INJURY-SUFFICIENCY.

1. Any city charged with the duty of maintaining streets and sidewalks is liable for injuries sustained by travelers, exercising ordinary care, who are injured by the city's negligent failure to perform that duty.

2. The provision in Comp. St. c. 13a, § 67, subd. 6, whereby it is made the duty of realestate owners and occupants to keep sidewalks in repair, and making them liable for injuries caused by defective sidewalks, does not relieve the city from that duty, and consequent re sponsibility.

3. The various charter provisions of cities of the first class having more than 25,000 inhabitants, with regard to the maintenance of sidewalks, construed as imposing a direct liability upon the municipality for injuries from defective walks.

4. Comp. St. c. 13a, § 36, requiring that, to maintain an action against a city for an unliquidated claim, the party must file in the office of the city clerk, within three months from the time the right of action accrues, a statement giving, among other things, the place of the injury, requires that the statement must describe the place with such certainty that, from the description and inquiries suggested thereby, the place may, with reasonable diligence, be identified.

5. A notice under that section stated that the plaintiff was passing over the sidewalk on the north side of Q street, between Eighteenth and Twentieth streets, and "stepped into a hole in the sidewalk, which was in a bad state of repair." Although a space of two city blocks was described, held, that the notice was good, as it stated that the sidewalk was in bad repair, and that plaintiff stepped through a hole therein, there being no proof that such conditions existed at more than one spot in the space described. No presumption of negligence at other places can be indulged to relieve the city from liability.

(Syllabus by the Court.)

of abutting real estate, and so, by implication, at least, relieves the city from that duty. The question is therefore wholly one of statutory construction, and cases from other states are of little assistance in solving it. Lincoln is, and in 1894, when the injury to plaintiff occurred, was, a city of the first class, containing more than 25,000 inhabitants, and governed by Comp. St. c. 13a. The following provisions of that chapter are pertinent:

"Sec. 34. The mayor and council shall have the care, supervision and control of all public highways, bridges, streets, alleys, public squares and commons within the city, and shall cause the same to be kept open and in repair and free from nuisances."

"Sec. 31. The street commissioner * shall, subject to the orders of the mayor, have general charge, direction and control of all work in the streets, sidewalks, except matters in charge of the civil engineer," etc.

"Sec. 67, subd. 6. The council shall have power to set aside a space designated as the sidewalk space, on each side of all streets

Action by Catherine O'Brien against the city of Lincoln. Judgment for plaintiff. Defendant brings error. Affirmed.

J. R. Webster, John P. Maule, and N. C. Abbott, for plaintiff in error. Mockett & Polk and R. D. Stearns, for defendant in er

ror.

IRVINE, C. This action was by Catherine O'Brien against the city of Lincoln to recover for personal injuries by her sustained by reason of a defective sidewalk. She had a verdict and judgment, which the city seeks to avoid. The record distinctly presents two, and only two, questions: First. Is a city of the class to which Lincoln belongs liable in any event to one who suffers an injury from a defect in the sidewalk? Secondly. Was the notice served upon the city before bringing suit sufficient in its description of the place where the injury occurred?

The general duty of municipal corporations to maintain their streets, including the sidewalk space, in a reasonably safe condition for public travel, and their consequent liability for a negligent failure to perform that duty, has been often asserted. Among the more recent cases declaring the rule are: City of Lincoln v. Smith, 28 Neb. 762, 45 N. W. 41; City of Lincoln v. Calvert, 39 Neb. 305. 58 N. W. 115; City of Aurora v. Cox, 43 Neb. 727, 62 N. W. 66; City of Chadron v. Glover, 43 Neb. 732, 62 N. W. 62. The existence of this general rule is conceded, but it is asserted that it does not apply to the class of cities to which Lincoln belongs, and so far as concerns sidewalks, because the so-called charter, or act incorporating such cities, casts in express terms the duty of maintaining sidewalks upon the owners

of trees and grass and may require and regulate the planting and protecting of the trees and grass, and the construction of sidewalks in such space. Such space shall extend from lot line to curb. Whenever any street or avenue shall have been brought to the established grade or permanently improved, the council shall require the owners of the real estate adjacent thereto, to bring the sidewalk space along or in front of such real estate to the established grade and to lay a sidewalk thereon of such width and materials as the council may determine; and in case such property owner shall refuse and neglect to cause such grading to be done or sidewalk constructed within thirty days after being notified in the manner prescribed by ordinance, the council may order said grading to be done and said sidewalk constructed, and assess the cost thereof against the real estate in front of which said work was done. Whenever any street or avenue shall have been brought to the established grade or permanently improved the council may require the owners of the real estate adjacent thereto to bring the sidewalk space along or in front of such real estate to the established grade and to lay a sidewalk thereon of such suitable material placed in such sidewalk space as the council may determine and shall have so ordered by proper ordinances. * And in case any such property owners shall refuse and neglect to cause such grading to be done or said sidewalk constructed within thirty days after being notified in the manner provided by ordinance, the council shall order said grading to be done and said sidewalks constructed in conformity with the ordinances regulating the same, and shall have power to take up and remove all walks not laid in conformity with such rules and regu