59 Neb. 597 | Neb. | 1900
The determination of this case hinges upon the proper construction to be given to the following contract:
“Contract for Bent of Goods from C. J. Baber, 307 South 6th Street, St. Joseph, Mo.
“C. Priebe, May 8th, 1895, the undersigned, agree to the following: We hereby rent from C. J. Baber, 307 South 6th street, St. Joseph, the following described property:
To be used for medicine business; to be used at various towns; to be shipped from St. Joseph, Mo., via St. Joseph and G. I. B. B.; to be returned from......via...... on the____day of____... of 189..
“The conditions of this contract are:
“First. That the rent shall begin from the time of delivery from the store of C. J. Baber and continue until the above rented articles are returned and delivered to C. J. Baber again.
“Second. Should the above rented articles be detained longer than the above mentioned period, we agree to' pay per for the extra time the goods are so delayed.
“Third. We further agree that the above mentioned goods shall not be pacbed or shipped when wet or damp,*600 and to pay all damages arising therefrom; the same to be charged against the undersigned.
“Fifth. We further agree to pay all damages caused by fire, storms, mildew, or other causes, including damages caused by marking, painting or otherwise defacing the above rented property; and to return the above mentioned property to C. J. Baker, in as good condition as when received, except so far as the same shall have suffered from reasonable usé.
“Remarks.
“Signed, O. Priebe,
“By Geo. W. Webb, Agt.
“For value received, we hereby guarantee the above contract. G. Priebe.”
The property therein described was in the possession of, and being used by, the person signing the same, and others, in selling a quack nostrum — a “medicine fakir business,” as counsel for defendants aptly term it. The property was attached for the debts of the individuals engaged in the business mentioned, and replevied by the plaintiff, who claimed the ownership thereof.
The trial court construed the contract as a conditional sale, and peremptorily instructed the jury accordingly. In our opinion, this view was erroneous. From a careful examination of the terms of the contract, we fail to discover any element in it from which it can be inferred that a sale upon any terms was intended by the parties when entering upon the contract. It has every evidence of a bailment for hire, and nowhere do we find any language which can be construed as an evidence of sale. It .is true, as stated by counsel, that the possession of the property is an indicium of ownership; but possession, in this instance, is equally consistent with their special property therein as bailees. It is urged that the rental for the property is so great as to indicate a conditional sale. We do not so regard it. This might be true, if, with other facts or circumstances, a sale could be in
In Harrison v. Lenz, 47 Ill. App., 170, the following language is used: “When the identical article delivered is to be restored in the same or an altered form, the contract is of bailment, and the title to the property is not changed. But when there is no obligation to restore
Reversed.