The following opinion on motion for rehearing was filed November 19, 1926. Former judgment of affirmance vacated, and judgment of district court reversed, with directions.
Heard before Morrissey, C. J., Rose, Dean, Day, Good and Thompson, JJ., and Redick, District Judge. Redick, District Judge.An opinion was filed in this case December 30, 1925, affirming the judgment of the court below. A motion for a rehearing was overruled, leave given to file a second motion for rehearing and argument had upon the same. An opinion was then prepared disposing of the case upon its merits, but the same has been recalled and the present *155opinion adopted as the final disposition of the case. For a general statement of facts, reference is made to our first decision, ante, p. 150, but other facts necessary for the understanding and disposition of the questions presented will be noted. By our first opinion the merits of the case were not discussed nor disposed of, but the judgment of the lower court was affirmed because it appeared from the record that prior to the filing of the appeal in this court the appellant had filed in the district court a request for stay. It was therefore held in accordance with section 8991, Comp. St. 1922, that no appeal was allowable.
In view of the fact that the Constitution of this state provides that the “right to be heard in all civil cases in the court of last resort, by appeal, * * * shall not be denied” (article I, sec. 24), we have reconsidered this question. The facts of record regarding the filing of the request for stay are as follows: Trial having been concluded December 13, 1922, the case was taken under advisement, and on January 26, 1923, the court orally delivered its decision on the merits; but the decree was not passed and entered of record until April 30, 1923. On February 14, 1923, defendant filed a supersedeas bond which was approved by the clerk. That the bond was a supersedeas bond is without doubt; it is so recited, the amount fixed by the court at $500, and the condition to prosecute the appeal without delay and pay all costs was all that was required in view of the facts that the personal property had been sold and the real estate in the hands of a receiver. Under such circumstances a condition against waste is superfluous. On February 15, 1923, a request for stay in usual form was filed appearing to be signed by John Peterson. May 22,1923, praecipe was filed in this court. These proceedings were respectively taken by different attorneys representing defendant, and we think it is justly to be inferred from the record that the request was inadvertently filed and should not defeat the appeal. The existence of the request for stay was not brought to the attention of this court by motion to dismiss the proceedings, nor until the filing of the brief of appellees, May 7, *1561924, which discussed the case upon its merits very fully, and the fact of the stay was mentioned only in two lines under propositions of law and five lines in the conclusion of the brief. We are further of the opinion, under the circumstances of this case, that, the request for stay having been filed before entry of the decree upon the record, such irregularity would not destroy its efficacy as a stay, Jenkins Land & Live Stock Co. v. Attwood, 80 Neb. 806. But by the same liberal construction of a remedial statute, when proceedings are set up to defeat a right protected by the Constitution, they should be regular in all respects. Section 8988, Comp. St. 1922, requires request to be filed “within twenty days after rendition of such decree,” and section 8991 provides that “no * * * appeal shall be allowed after such stay has been taken.” Where an appeal was required to be taken “within six months after the rendition of the judgment,” we held that “rendition of the judgment” meant the entry thereof upon the record. Bickell v. Dutcher, 35 Neb. 761. We think they should be given the same meaning here, and that we were in error in holding that the request for stay in this case defeated the appeal. We do not hold that the right of appeal may not be waived, nor that section 8991, supra, is unconstitutional, but that the waiver must be intentional, and the statute enforced literally within its terms. We will therefore consider the appeal on its merits.
On the one side, the Security State Bank and Casper Theisen are seeking to foreclose a chattel mortgage for $16,000 and a real estate mortgage for $54,000 and they will be hereinafter referred to as the plaintiffs. John Peterson, purchaser of the Theisen property, files a cross-petition seeking to recoup damage he claims to have sustained by alleged false representations of Theisen as to the quality, quantity and value of the cattle and hogs and the value of the half section of land received from Theisen.
While the record is very voluminous, it is quite unsatisfactory in regard to many material questions. To start with, it may be noted that this was an exchange by Peterson *157of two Iowa farms consisting of 184 acres, with the stock and farm implements upon them, for the Theisen farm of 320 acres, with a much larger amount of stock, consisting of cattle and hogs, farming implements, grain, and so forth. The contract signed by the parties recited that Peterson’s equity was valued at $40,235 and Theisen’s at $108.235. In arriving at these figures each party placed a very much inflated valuation upon his land. There is no complaint as to the valuation of Peterson’s chattels, nor upon Theisen’s chattels except the cattle, which were valued at $300 a head and the hogs at $50 a head. Eighty acres of the Iowa farm were valued at $300 an acre, and 104 acres at $285, and Theisen’s farm at $285 an acre.
It would serve no useful purpose to recite the evidence in detail, but we have examined it with great care and have no hesitancy in stating our conclusion that Peterson was greatly over-reached in,the deal and imposed upon by Theisen. At the start of the negotiations, in response to a letter from Peterson’s brother, who was a real estate agent in Omaha, Theisen wrote that he had been offered $285 an acre for his land a year ago but had it priced at $300 (no proof of this) ; that his cattle he priced at $325 a head, having sold some the year before at $460 and two years before at $670. He priced his 160 head of good Duroc-Jersey hogs at $10,000, but put in contract at $8,200. He stated that if the deal was made he could guarantee Peterson a sale of 50 head of these cattle the following June for-$18,000 or $20,000, and at the February sale, 1921, 50 head of hogs would bring better than $7,000. When Peterson came to look at the Theisen farm, Theisen showed him the record of the sales made by him for the three years previous, which substantiated the statements of his letter and ténded to establish the valuations claimed for the cattle and hogs in the contract. That the cattle and hogs were thoroughbreds substantially as represented seems to be established by the evidence; but their value, as thoroughbreds, was entirely dependent upon there being a market for that class of stock; and the evidence establishes that the market began *158to fade away early in the winter of 1920, and by spring had practically disappeared. Peterson had no experience in dealing with thoroughbred stock, while Theisen had been in that business for a number of years. Peterson was undoubtedly deceived by the exhibits of prior sales and by the guaranty of Theisen of the amounts which could be realized in February and June following. He was also entirely uninformed as to the value of Nebraska lands and the lands in question, and relied upon the statements of Theisen in that regard. Upon Peterson's first visit to the Theisen farm late in November, 1920, he spent but an hour and made only a cursory examination. Upon his second visit he was there a little longer, an hour and a half or two hours, and counted the cattle and hogs. They then went to a neighboring town and had prepared the contract of exchange, but Peterson refused to sign the same because a note and mortgage for $9,600 which he was to put into the deal was up for collateral with an Iowa bank to secure $2,000. He now says that he refused because the deal looked pretty big to him that morning. Peterson and his brother and Theisen then took the train for Omaha, where Peterson proceeded to get drunk, was arrested, put in jail and the next morning fined. An effort is made to connect Theisen with this incident as the furnisher of the liquor, but the evidence is not convincing. However, the parties stayed in Omaha the following day and on the 10th of December went to Woodbine, Iowa, where the contract of sale was executed, Theisen 'immediately leaving for home. We do not consider the circumstances of the execution of the contract of great importance, because the mortgages 'in question were subsequently executed about the 2d of March, 1921, and Peterson took possession of the Thiesen farm about the 15th of January, 1921, thereby waiving any objection upon the ground of his condition at the time the contract was executed. They constitute, however, details in the picture and tend to characterize the final transaction as disclosed by the evidence. The Iowa lands were conveyed to Thiesen and the personal property disposed of by him and about *159March 2,1921, the Theisen lands were conveyed to Peterson and the mortgages in question executed to Anna Theisen, the wife of Casper, but this change is of no legal importance.
June 2, 1921, Anna Theisen began the action to foreclose the chattel mortgage, and later on the Security State Bank, to whom the two mortgages had been assigned as collateral to Theisen’s notes in the bank, aggregating about $16,000, intervened, and still later, in January, 1922, filed suit to foreclose the real estate mortgage, and upon application of Peterson and by consent of parties the actions were consolidated and tried together. By consent a receiver was appointed of all property covered by the chattel mortgage and later on a receiver was appointed for the real estate. The chattels were sold under order of the court, netting $8,452.08, $7,000 of which was applied upon the Thiesen notes at the bank. In February, 1921, by consent, the hog sale was held as advertised and 40 sows were sold for $2,375. The situation of Peterson is that within a period of six months he had lost his $9,600 mortgage, his Iowa farms, and all of the chattels which were upon the Theisen farm. A decree of foreclosure for $63,000 has been rendered upon the Theisen farm and a judgment against him for $9,983.12 for the balance of the chattel mortgage note. It would seem (that the situation thus presented is so unusual as to cast suspicion upon the methods by which it was brought about.
No complaint is made in the pleadings of false representations as to the value of the Iowa lands; evidence was received as to their real value, but we cannot consider it, as it Is not in response to any pleading.
Theisen says he did not represent his land to be worth $285 an acre, but that he priced it at (that figure. However, his letter, above mentioned, disputes him on this point. The highest value placed upon the land by two witnesses for plaintiff Is $225, while witnesses for defendant put it at $90 to $120, $100 (2), $100 to $125 and $110. It also appears that the only sale in the immediate neighborhood *160was at $144 an acre in 1919, and all witnesses agree that there was a decided drop in values beginning with ¡the fall of 1920.
. The hogs were lumped at about $50 a head, though the sales in previous years, reports of which were shown Beberson, showed an average of over $150.
The cattle were priced at $300, but as above noted, there was no market for thoroughbreds in December, 1920, and their value was greatly depreciated. No evidence was offered by either side as to the real value of -the cattle and hogs as part of the equipment of a stock farm, which is the proper test. Defendant claims that they were only worth what they would sell for on the stock market, but this is clearly incorrect, as defendant was. not purchasing for slaughter. Plaintiffs claim that they should not be held responsible for the failure of the market for thoroughbred cattle. The evidence is conclusive, however, that there was no market for that class of cattle in December, 1920, nor for a long time thereafter. While it is true the cattle had a value in excess of the beef price (which defendant figures at $3,354), no direct evidence was offered to show what was such value.
In this state of the evidence, the writer of the withdrawn opinion attempted to fix the value of the cattle by applying to- them the same rate of depreciation which the evidence showed had been suffered by the hogs. This is characterized by counsel for appellees as hypothetical and speculative, and we have concluded that the criticism is just. Being without any evidence upon which to base a finding of the market value of the cattle and hogs, we are unable to dispose of the case on the merits and the case must be remanded for further proceedings.
We hold, however, the law of the case to be: (1) That filing the request for stay did not defeat the appeal. (2) That the case of Peterson for false representation is made out, and that he is entitled to recoup his damages in this action. (3) That evidence of the value of the Iowa land and chattels is irrelevant under the pleadings as they now *161stand. (4) That the Security State Bank does not occupy the position of a bona fide holder for value (this is not seriously contended for in the brief's). (5) That the measure of damages is the difference between the actual value of the property transferred and what its value would have been had it been as represented.
It is therefore ordered that the judgment of the district court Ibe reversed and cause remanded for an accounting of the amount due upon' the mortgages in suit in accordance with the principles herein announced, each party being granted leave to file amended pleadings if so advised.
Reversed.