2 Neb. 172 | Neb. | 1873
On the twenty-first day of April, 1869, the defendant in error filed his petition in the Court below, complaining that he was the owner and entitled to the possession of the property claimed; and that the plaintiff in error, with Hawley, Burks, & Co., unlawfully detained the same. An order of delivery was issued, under which the property was taken, and passed to the plaintiff in the action. The claim of ownership is based on the following writing, introduced by him ip evidence; to wit: —
“ In consideration of the deeding to me of the northeast quarter and the north-west quarter of section No. 35, in township 6, north in range 7, east of sixth principal meridian, three hundred and twenty acres more or less, by Bichard F. Barrett and wife of Brownville,
“ Witness my hand and seal this ninth day of March, 1869.
(Signed) “ J. B. Turner.”
By correspondence between the parties subsequent to this time, the place of delivery was changed from Phelps Station to Nebraska City. From some advices received by Turner, doubts arose in his mind as to the validity of the title to the land mentioned in the agreement. So, instead of sending any plants to Barrett, he sent five hundred thousand plants to Nebraska City, directed to his own name, accompanied with the following instructions to the railroad or express agent at that place; to wit: —
“Jacksonville, April 9, 1869.
“ I propose to deliver five hundred thousand good merchantable plants for a certain tract of land, — three hundred and twenty acres in Gage County, — sent to Richard F. Barrett of Brownsville, Neb., in place of receiving two dollars and twenty-five cents cash for them per thousand, according to the original order from Mr. Barrett, made last fall. But the land proved embarrassed by fault of a third party, as alleged before the plants were shipped. To give time to defend myself, and prevent needless delay and embarrassment to Mr. Barrett, I have ordered the plants shipped to my own name, so as to have them seasonably on the ground. •This is to order that the express agent or the railroad agent in whose care these plants are is hereby author
“ J. B. Turner.
“ P.S. —I will not order the money withdrawn till the matter can be adjusted, if within one month.”
At the time of shipping, Turner sent a letter to Barrett, advising him what he had done. Barrett declining to receive the plants sent on the conditions above, he offered to Hawley, Burks, & Co. the freight and charges on the same; and, upon their refusal to deliver them, instituted this action. From this statement it will be seen that Turner’s contract was executory. No specific plants were bargained for, or in contemplation of the parties. In a given time, and at a place agreed upon, he was to deliver to Barrett five hundred thousand plants of a certain quality. Whether he has ever performed his contract or not, is not known. If he has failed, he may be liable to an action for damages. But, until such delivery is made, I am at a loss to understand when or how any right of property arose which would enable the plaintiff to maintain this action. Delivery may be either real, by putting the thing sold into the possession or under the control of the purchaser; or it may be symbolical, where the thing does not admit of actual delivery, as by the key of a warehouse, or the delivery of:
Because there is justly owing me ten dollars, I am not warranted in seizing the first ten dollars I may see in my debtor’s possession. Nor, should he deposit that sum with a third person, with instructions to deliver it to me only on my signing a receipt in full of all demands, could I rightfully take it from such third party under an order of delivery. It is not the office of an action of replevin to enforce specific performance in the sale of chattels, where the vendor fails to deliver the property as he may have agreed.
In Updike v. Henry, 14 Ill., 378, the defendant agreed to make and deliver three lumber-wagons to the plaintiff within a given time. When the defendant had made that number, upon his refusal to deliver them to the plaintiff, the latter brought an action of replevin. The Court held that no title passed, and that replevin would not lie ; that plaintiff’s remedy was a suit on the contract. 1 Hil. on Torts, 618.
Among the instructions given by the Court, and to which the defendant excepted, was one charging the jury thus: “ If Turner, after being paid for the plants, sent the same in pursuance of his contract to an express
The judgment of the Court below must be reversed, and a new trial ordered.