Goodman v. Kennedy

10 Neb. 270 | Neb. | 1880

Lake, J.

The judgment complained of was rendered in an action for the replevy of an article of personal property called “ Pinus Canadensis,” of which .the defendant Kennedy was the manufacturer. The plaintiff claimed and sought the possession of this property as the absolute owner thereof, by virtue of a contract between himself and Kennedy, of which the following, is all that is essential in this controversy, viz.: “ S. H. Kennedy, of N. Y. city, hereby agrees to manufacture his hemlock remedies in Omaha, and exclusively for C. E. Goodman, and said Goodman agrees to buy said S. H. Kennedy’s hemlock remedies at the following prices, * * * * and said Kennedy is to deliver the same, as manufactured, and up to the standard, to the said Goodman, in Omaha, ready for shipment, * * * and assorted as the trade may demand, or the said Goodman may order, and which amounts' said Goodman hereby agrees to pay when the goods are so delivered. And said Kennedy further agrees not to establish any other than the Omaha manufactory, or agency, or sell to other parties in the United States, for the term of three years from this date.”

By the express terms of this agreement the goods were to be delivered to Goodman in Omaha. Delivery and payment were made concurrent acts, and the enforcement of either dependent on the other. Therefore, under the law of sales of personal property, the ownership was not transferred from Kennedy to Goodman until a voluntary delivery was made. It is true that, under the contract, Kennedy ought to have handed over the goods as requested, but, until he did so, they were his own property, to do with as he saw fit, being of course liable for any damage Goodman might sustain in consequence of a failure to perform his engagement. His failure, or refusal, to make delivery as he -had agreed, however, did not divest him of his ownership, nor authorize Goodman to seize the goods without his consent. And the evidence very clearly shows that the parties themselves, to the extent that the contract was performed, so understood its import. Goodman himself testifies that he never credited Kennedy on his books until the goods were actually delivered; and doubtless, had a quantity of the article manufactured and prepared “for shipment” been accidentally destroyed ‘before it had been received by Goodman, he would hardly have considered the loss as his own. But it would have been if he could maintain an action of replevin under the circumstances of this case.

The plaintiff in replevin must recover, if at all, on the strength of his own title, and not because of the weakness of his adversary’s. Goodman, therefore, is not in a position to criticise the alleged sale of the goods in controversy to the defendants Kennard & Forsythe. That is a matter between that firm and Kennedy, and so long as they are agreed that a sale was made, that ends it, so far as this action is concerned. Had the goods been seized in attachment by a creditor of Kennedy it would have been very different, and there may be doubt whether, in such a controversy, Kennard & Forsythe could have held them under the state of facts disclosed by the evidence before us. Such being our views concerning the merits of the case it is hardly necessary to notice the minor questions presented by the assignment of errors, but we will refer briefly to some of the more important of them.

By the first error assigned it is urged that the court erred in permitting the defendant Kennedy to testify “ as to the dates in a book shown to witness, being dates of turning over goods, etc., the said book not having been first shown to counsel, and not being offered in evidence.” There was no error in this particular. The object of this testimony was to show that, conforming to the letter and spirit of the contract, credit was given to Kennedy for the goods at the very time of delivery, and not before, and the question put to the witness accordingly was: “Were the dates as shown by this book the actual date of turning over the goods?” To which the witness answered, “Yes, sir.”

There was nothing objectionable in this 'testimony. The fact that the book itself had not been offered in evidence was of no consequence. It was subsequently offered and admitted, and the order of presentation of proofs was a matter of discretion with that court, especially as the trial was to the court, without a jury. There was no abuse of this discretion.

It- is also assigned for error that the witness Kennard was permitted to testify as to his understanding of when the title passed to Kennard & Forsythe. This was incompetent evidence, and under certain circumstances its admission might have been held material error, calling for a reversal of the judgment. But it is not so here. This testimony was given on a re-examiuation of the witness in chief, and the record shows that substantially the same testimony had been brought out by plaintiff’s counsel on his cross-examination, from which we quote:

Q. Then the goods were to- become yours, and you were to give him credit for them ?

•A. Yes, sir. I considered my title perfect when I made that payment.

Q. There was no particular agreement about «it, but that was your legal conclusion ?

A. Yes, sir. It was not a legal conclusion particularly, it was a matter of common sense between dealers.

Having thus called from this witness his view respecting his rights under his purchase from Kennedy, the plaintiff was hardly in a situation to complain of his being requested to express, or rather repeat, his “understanding” of the same matter, which was nothing more than his individual judgment. The answer to the question complained of added nothing whatever to the testimony already-before the court, and although incompetent, its admission was error without prejudice, for which a judgment, as we have frequently held, will not be reversed.

The only other of the alleged errors that we care to notice is that pertaining to the judgment. It is contended by the plaintiff that it should have been in the alternative, that is, for a return of the property, and in case a return could not be had, then for the value of the property, and damages. The provisions of statute requiring judgment for the return of the property taken by order of replevin was no doubt intended chiefly for the benefit of defendants whose property has been thus wrongfully taken from them.

With this view of the purpose of the statute, it has been urged with much force and reason that defendants only can take advantage of the failure to include in the judgment a provision for such return. But however this may be, before the plaintiff can complain of such omission he must show by satisfactory evidence that he still has the property in suitable condition to be returned. In the record now before us it does not appear that any of the property was still in possession of the plaintiff, or that it was even in existence at the time of the trial. Eor aught that appears a reformation of the judgment in this particular would be but an idle ceremony. We see no error in the record, and the judgment is affirmed.

Judgment affirmed.