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Leavitt v. Sizer.

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or his agents intended to commit, and did commit, a fraud upon the defendants in manner complained of in defendant's counter-claim, otherwise the defendant cannot recover upon his counter-claim. The defendant is not entitled to anything upon this counter-claim unless you believe from the evidence that the plaintiff or his agents made the resentations alleged; that such representations were false; that the parties making them knew they were false, or had no apparently good reason to believe them to be true; that they were made with the intent to defraud the defendants, and defendants were thereby induced to make the trade in question, and sustained damages by means thereof."

The words "that the defendants are not entitled to recover anything on their counter-claim unless such representations were false, and that the parties making them knew they were false," were liable to mislead the jury. The rule is that where a party without knowing whether his statements are true or false, makes an assertion as to any particular matter upon which the other party has relied and has suffered damages, the party thereby defrauded will be entitled to relief. (Phillips v. Jones, 12 Neb., 215; Smith v. Richards, 13 Pet., 38; Trumball v. Gadlen, 2 Strobh. Eq., 14; McFerron v. Taylor, 3 Cranch, 281.) The court therefore erred in giving this instruction.

The court also erred in giving the following instruction: "Before you can find for the defendant you must find, either that the plaintiff personally made the representations claimed by the defendant, or that said Hoxie was the agent of the plaintiff, or that he made said representations and that the plaintiff, knowing what representations had been made by said Hoxie, afterwards ratified them."

This instruction is clearly wrong. A principal who retains the benefit of a contract made by his agent thereby adopts all the instrumentalities employed by such agent to effect the contract. In other words, a party cannot retain the benefits derived from the fraudulent conduct of his

C., B. & Q. R. Co. v. Gustin.

agent without being charged with the instrumentalities employed to accomplish the purpose. (Rogers v. Empkie Hardware Co., 24 Neb., 653; N. E. Mtge. Sec. Co. v. Henderson, 13 Id., 574; McKeighan v. Hopkins, 19 Id., 33.)

There are other errors which need not be noticed. The judgment is reversed and the cause remanded for further proceedings.

THE other judges concur.

REVERSED AND REMANDED.

CHICAGO, B. & Q. R. Co. v. A. J. GUSTIN.

[FILED JUNE 30, 1892.]

1. Justice of the Peace: PLEADING: APPEAL. Where an action is brought before a justice of the peace the plaintiff is required to file a bill of particulars of his demand, and the defendant, if required by the plaintiff, his agent or attorney, shall file a like bill of the particulars he may claim as a set-off. These are the only pleadings required in an ordinary action before a justice of the peace. Where such action is appealed to the district court, and the answer contains new matter, the plaintiff may follow the procedure in the district court and reply to such new matter.

2. Evidence: BILL OF LADING held to have been properly admitted in evidence.

3.

There was no conflict in the evidence as to the character of the goods and that they belonged to the fourth class.

ERROR to the district court for Lancaster county. Tried below before FIELD, J.

T. M. Marquett, and J. W. Deweese, for plaintiff in error: The reply should have been stricken from the files. (O'Leary v. Iskey, 12 Neb., 136; Courtnay v. Price, Id.,

C., B. & Q. R. Co. v. Gustin.

189; Dillon v. Russell, 5 Id., 488; Williams v. Evans, 6 Id., 218; Maxwell, Pl. & Pr., 108; Durbin v. Fisk, 16 O. St., 534.) As to other points: Savage v. Aiken, 21 Neb., 610; Moore v. Besse, 30 Cal., 570; Smith v. Weage, 21 Wis., 442; Harris v. Harris, 10 Id., 468; Vaughn v. R. Co., 9 Am. & Eng. R. Cas. 41; Hill v. R. Co., Id., 21; Sumner v. R. Co., Id., 18; Little Rock R. Co. v. Daniels, 32 Id., 479; Galveston R. Co. v. Kutac, 37 Id., 470.

C. G. Dawes, contra, cited:

As to the character of a bill of lading: Lawson, Cont. of Carriers, par. 102; Cincinnati, etc., R. Co. v. Pontius, 19 O. St., 221; White v. Van Kirk, 25 Barb. [N. Y.], 16; Wolfe v. Myers, 3 Sandf. [N. Y.], 7; Maghee v. Camden, 45 N. Y., 514; Manhattan Oil Co. v. R. Co., 54 Id., 197; Judson v. R. Co., 6 Allen [Mass.], 486; Mich. Cent. R. Co. v. Hale, 6 Mich., 243. Admission of bill of lading in evidence: : Neally v. Greenough, 5 Fost. [N. H.], 325; Didier v. Auge, 15 La. An., 398.

MAXWELL, CH. J.

The defendant in error brought an action in replevin against the plaintiff in error, in the county court of Lancaster county, to recover the possession of certain goods. The case was appealed to the district court, and as a point is made on the pleadings, it becomes necessary to set them out. The petition is as follows:

"The above named plaintiff complains of the above named defendant, and for cause of action says that he is the owner of, and entitled to the immediate possession of, the following described goods and chattels, to-wit: one box of iron castings, of a weight of 125 pounds, of the value of $15; that the said defendant wrongfully and unlawfully detained the said goods and chattels from the possession of the said plaintiff, and has detained the same as aforesaid

C., B. & Q. R. Co. v. Gustin.

for the space of two days, to plaintiff's damage in the sum of $50; that said goods were not taken in execution on any order or judgment against said plaintiff, or for the payment of any tax, fine, or amercement assessed against him, or by virtue of any order of delivery issued under the chapter of the Code of Civil Procedure providing for the replevin of property, or on any other mesne or final process issued against the said plaintiff.

"Wherefore the said plaintiff prays judgment against the said defendant that he, the said defendant, do return to the said plaintiff the said goods and chattels so unlawfully detained, and for the said sum of $50, his damages so as aforesaid sustained by reason of said unlawful detention, or for said sum of $15, the value of said property, with damages as aforesaid, in case it shall be found that a return thereof cannot be had."

To this petition the defendant below filed an answer as follows:

"Now comes the defendant above named, and for answer to the petition filed by the plaintiff, denies that he is the owner and entitled to the immediate possession of the property described in said petition, and denies that the defendant wrongfully and unlawfully detained the same for the time mentioned in the plaintiff's petition or for any other time, and denies that the plaintiff is damaged.

"Further answering the said petition, the defendant says that it is a common carrier, owning and operating a line of railroad from the city of Chicago, westwardly, through Illinois, Iowa, and through the town of Lincoln, Nebraska; that at the station of Wann, in the state of Illinois, on defendant's line of road, it received for shipment, in the regular course of business as a common carrier, one box of saddlery hardware weighing 125 pounds, consigned by the Eberhard Manufacturing Company to the plaintiff, A. J. Gustin, at Lincoln, Nebraska, the same being the goods and chattels mentioned in the plaintiff's petition, and the

C., B. & Q. R. Co. v. Gustin.

said defendant carried the said freight from the said town. of Wann, in the state of Illinois, to the city of Lincoln, Nebraska, for the plaintiff above named, and having thus carried the same for the plaintiff as a common carrier, the defendant had and has a lien upon and especial property in the said bill of freight thus carried for the freight charges due for the said carriage and shipment, and this defendant had such lien upon and especial property in the said freight described in plaintiff's petition at and prior to the time of the commencement of this action. The defendant therefore alleges that it had the lawful possession and lawful right to hold possession of the same until the freight charges for the said shipment were duly paid."

"The defendant denies each and every allegation contained therein, except as herein before stated and admitted." To this answer Gustin filed a reply as follows:

"Now comes plaintiff, A. J. Gustin, and for reply to answer of defendant denies each and every allegation therein contained, except as hereinafter stated and qualified, to-wit: That said defendant is a common carrier, operating a line as stated in said answer; that it received at Wann, Illinois, a box of iron castings consigned by the Eberhard Manufacturing Company to the plaintiff. Plaintiff particularly denies the allegations of said defendant that said box contained saddlery hardware, but alleges and avers that it contained iron castings. Plaintiff further admits that said box of iron castings was carried by said defendant to Lincoln, state of Nebraska."

The railway company thereupon filed a motion to strike the reply from the files, because it raised a new issue, no reply having been filed in the county court. The motion. was overruled and this is the first error complained of.

Section 951 of the Code provides for the filing of a bill of particulars of the plaintiff's demand, and the defendant, when required by the plaintiff, his agent or attorney, must file a like bill of the particulars he may claim as set

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