George Adams & Frederick Co. v. South Omaha Nat. Bank

Citations

• 123 F. 641
• 60 C.C.A. 579
• 1903 U.S. App. LEXIS 4028

Syllabus

<p>1. Pleading — Sufficiency of Petition — Objection to Introduction of Evidence.</p> <p>Where the sufficiency of a petition is first challenged after answer by an objection to the introduction of evidence thereunder, as is permitted by the Nebraska practice, instead of in the usual and preferable way by demurrer, the pleading should be liberally construed; merely technical defects of averment should be overlooked, and the objection should not be sustained unless there is a total failure to allege some matter which is essential to the relief sought.</p> <p>2. Same—Averment of Ownership.</p> <p>An avérment that one is the owner of certain described property is an averment of an ultimate fact, such as is permissible in good pleading, and it is not necessary to describe the manner in which the pleader became the owner.</p> <p>8. Chattel Mortgage—Removal and Sale of Property by Third Person— Action by Mortgagee to Recover Proceeds.</p> <p>A petition alleging that plaintiff is the owner of a duly recorded chattel mortgage on certain property to secure an unpaid indebtedness, and that defendant wrongfully took possession of such property, removed it from the state, and sold it in open market for a sum less than the indebtedness secured, which defendant has converted to his own use, states a good cause of action on the case for the recovery of the sum so received, without regard to plaintiff’s possession of the property or right of possession at the time the wrongful act was committed.</p> <p>4. Same—Sufficiency of Description.</p> <p>A chattel mortgage covered 482 head of steers, two and three years old past, all dehorned, and all branded with a certain brand, and recited that all of said cattle were owned by the mortgagor and in his possession on certain described premises. Held, it being shown that the mortgagor had on the premises described but 471 head of steers of the ages specified, that the mortgage was valid as to all of said 471 head, although some of them were n