16 Neb. 300 | Neb. | 1884
The plaintiff commenced this action in the district court of Cass county, and in his petition alleged that on the first day of March, 1881, he was the owner of fifty-five tons of hay on the farm of the defendant, and that the defendant wrongfully converted said hay to his own use, to the damage of the plaintiff, etc.
The defendant answered: 1. A general denial. 2. That said plaintiff claimed said hay .through one Howland, and that said Howland attempted to purchase said hay of the defendant but never accomplished or completed the same, a condition precedent being the payment for said hay, which Howland never fulfilled and never in any manner acquired any right thereto. 3. That the contract between Holmes and Howland, by which Holmes claimed to have purchased said hay, had been rescinded and the consideration returned by Howland. 4. That the hay claimed by plaintiff was cut and made on defendant’s land and remained thereon until it was used, and that all acts of the defendant in relation thereto were as the absolute owner thereof.
The plaintiff replied, denying the allegations of the answer and alleging that at the time of the negotiations for the purchase of the hay by plaintiff, the defendant was present and knew that Howland was about to sell it to the plaintiff ; that he took part and assisted in making the contract and knew all about it, and did not make any claim to said hay, but spoke of and treated it as the property of How-land, and that plaintiff had no knowledge or information that defendant made or had any claim to the hay, and that defendant is now estopped to set up any claim to the same. A trial was had to a jury, who returned a verdict in favor of the defendant, and the plaintiff prosecutes proceedings in error in this court.
The plaintiff in error insists that the verdict of the jury
The facts as drawn from the evidence are substantially as follows: Howland, from whom plaintiff claims to have made the purchase of the hay, is the grandson of and resided with the defendant. Some time before the contract between the plaintiff and Howland was made, Howland purchased of the defendant, his hay at the agreed price of five dollars per ton. No part of the hay was delivered, and by the terms of the contract none of it was to be taken away until paid for, the title to remain in the defendant until this condition precedent was performed. Howland went to the stables of the plaintiff in Plattsmouth and proposed selling him some hay. The plaintiff proposed trading to Howland a span of. mules. No trade was made on that day, Howland saying if he concluded to close the trade he would return and complete it. Plowland did not return, and the next morning the plaintiff, with one Stahlman, went to the farm of the defendant and there a contract was made by which the plaintiff purchased of Howland seventy-five tons of hay for which he paid Howland one hundred dollars in money and was to deliver to him the mules, which he afterwards djd; the contract being that Howland waste deliver the hay to the plaintiff in Plattsmouth, to be weighed and delivered as Howland could do so. The testimony shows that there was from one hundred to one-hundred and twenty-five tons of hay in the field when the-contract was made, and that no specific stacks or ricks were selected or set off to the plaintiff, it being understood by the parties that Howland would sell hay on the street to-other parties and get the money therefor in order to make the necessary payments to the defendant for the hay. At the making of this contract the defendant was not present,, although the plaintiff first went to his house and in his-presence talked with Howland about the trade, and nothing;
The first point made by the defendant in error .is, that this action can not be maintained, for the reason that, the plaintiff had no such title to the hay as is necessary to maintain an action for its conversion. ■ This objection seems to' us to be well taken, and in our view of the case, presents an-insurmountable barrier to the plaintiff’s recovery. He has never, at any time, had either the actual or constructive possession of the property, which he alleges has been converted by the defendant, nor. has he at any time been entitled to its possession. None.of it had ever been delivered to him, nor was it in. any way set apart or separated from the • other hay at the time of the purchase. The contract between plaintiff- and Howland was for seventy-five tons of hay,' which Howland was to deliver to plaintiff at Plattsmouth' after first having it weighed. No delivery was made or attemped to be made in the field, in fact the contract by its express terms negatived any such purpose. Then it was not such a sale as Avould vest the title in the plaintiff. „ Suppose the contract had been entirely satisfactory to Howland and the defendant, and after the delivery of the twenty tons received by the plaintiff the remainder should have been destroyed by fire, would the plaintiff have been the loser thereby,'or could
In Herrick v. Carter, 56 Barb., 41, the plaintiff sold and delivered to the defendant dry goods, which the latter agreed to pay for in nails at a certain price, to be delivered on or before a future day specified. The transaction was held not to be a purchase of nails, nor even an exchange of dry goods for nails; but that the seller of the dry goods might recover for their purchase money with interest from ■the day it became payable. When anything remains to be done by either or both the parties to a contract of sale, before delivery, either to determine the identity of the thing sold, the quantity, or the price, the contract until such things are done is executory merely, and the title does not vest in the purchaser. Hale v. Huntley, 21 Vt., 147. Wallingford v. Burr, 15 Neb., 204. Hudson v. Wier, 29 Ala., 294. Stone v. Peacock, 35 Me., 385. Cunningham
This action for conversion is in effect the common law action of trover, and in order to maintain that action the plaintiff must have had the actual custody of, or some species of property, either general or special in the property, which is the subject of the action. Bertholf v. Quinlan, 68 Ill., 297. Barton v. Dunning, 6 Blackf. 209. Kennington v. Williams, 30 Ala., 361. Hickok v. Buck, 22 Vt., 149. And he must also have an immediate right to the possession of the property. Clark v. Draper, 19 N. H., 419.
. It is claimed by the plaintiff in error, that the defendant is estopped to set up his right to the hay under his conditional contract of sale to Howland for the reason that he did not make known to the plaintiff his rights before the purchase by the plaintiff. It would not be absolutely essential that the information should come directly from the defendant, if the plaintiff had knowledge of his rights before the purchase. As to whether he had that knowledge was a question for the jury to determine, there being some evidence from which it might be inferred. But in this case that question becomes unimportant as it is well settled that the plaintiff must recover, if at all, upon the strength of his own title, and not upon the weakness of that of the defendant. Davidson v. Waldron, 31 Ill., 120. Mulligan v. Bailey, 28 .Ga., 507. Zunkle v. Cunningham, 10 Neb., 162.
From the foregoing we conclude the district court did not err in overruling the plaintiff’s motion for a new trial,
JudgmeNT affirmed.