87 Neb. 76 | Neb. | 1910
Action of replevin in the district court for Douglas county to recover the possession of 30,000 pounds of StowelFs evergreen sweet corn. The plaintiff had the verdict and judgment, and the defendants have appealed. -
It appears that at all times hereinafter mentioned Mary T. Robinson was the owner of a farm situated near Waterloo, in Douglas county, Nebraska, known as the “Riverside farm”; that for the year 1907 she leased this land to the plaintiff, the J. C. Robinson Seed Company, which was engaged in raising and selling corn and other seeds at wholesale; that the plaintiff, in conducting its business, contracted with various retail dealers throughout the United States certain quantities of seeds of many kinds at stipulated prices; that, in order to supply such seeds and make sure of filling its orders, it entered into contracts with divers persons to grow for it different varieties of corn and vine seeds for certain agreed compensations, and to that end in the year 1907 it entered into a written contract with the defendant Hamilton to raise 50 acres, more or less, of Stowell’s evergreen sweet corn for it on its Riverside farm above mentioned, for which the seed company was to pay him $1.20 per hundred pounds when delivered to it at its seed house, or
It further appears that defendant Hamilton moved into the house, situated on the farm, and planted about 50 acres of Stowell’s evergreen sweet corn thereon, according to the terms of the contract; that he cultivated the same and harvested the crop in due season; that on the 1st day of December, 1907, he mortgaged three-fifths of it to one H. B. Waldron, without plaintiff’s knowledge, and shortly afterwards sold the same to the defendant J. O. Hively Seed Company, without either the knowledge or consent of the plaintiff. It also appears, without question, that before the sale to Hively, or the Hively Seed Company, plaintiff, by letter, notified Hively that Hamilton had refused to deliver the corn, that it owned the same, and warned all persons not to purchase it of Hamilton under penalty of being sued for conversion. By the terms of the contract the corn was to be delivered to the plaintiff on the 1st day of Jamiary, 1908; that on or about the 12th day of December, 1907, defendant Hamilton shelled and delivered two-fifths of the corn to the plaintiff at its seed house in Waterloo, and at the same time delivered the other three-fifths of it to the J. C. Hively Seed Company by storing it in a barn on the premises of the
Defendants’ first contention is that Hamilton, who grew the corn in question, and the Robinson Seed Company, could modify the terms of the written contract by a subsequent parol agreement; that they did so modify the contract; that the plaintiff consented to the division of the corn by Hamilton, and agreed to take two-fifths and give him the remaining three-fifths thereof. By this contention defendants admit the validity of the contract, and concede that without its verbal modification the plaintiff was the absolute owner, and entitled to the possession of the coin in controversy. Therefore the principal inquiry is. Does the evidence show or tend to show an agreement between the parties by which the corn was divided, as above stated?
The only testimony upon this point is the evidence of the defendant Hamilton, who testified, in substance, as follows: That just before the 12th day of December, 1907, he met J. C. Robinson, president of the plaintiff seed company, close to Traber’s store in Waterloo, Nebraska, and told him he was going to sell his corn and he wanted sacks to deliver his in at the same time. “Q. What did
The foregoing is the substance of the evidence in regard to the division of the corn, and it would seem that Hamilton himself doubted its sufficiency, for he testified, in face of his written contract, that he had rented the farm for two-fifths of the .crop. It is not disputed that under ordinary conditions $1.20 per hundred pounds was a fair price, and a reasonable compensation for raising the kind of corn in question. But it appears that about the 1st of December, 1907, there was reported to be a shortage of seed sweet corn, and its price advanced to $5 or $6 per hundred pounds, and it seems clear that this was the reason for Hamilton’s refusal to carry out his contract and deliver all of the crop to the plaintiff. It was also the basis of his determination to retain for himself and sell three-fifths of the plaintiff’s corn.- Considering the whole record, including the fact that before any of the conversations between Robinson and Hamilton took place relating to a division of the corn, Hamilton mortgaged three-fifths of it without the plaintiff’s knowledge or consent, and sold the same to the defendant J. C. Hively Seed Company, and the further undisputed fact that before such conversations occurred, if they ever did occur, the plaintiff had notified the Hively Seed Company, and others, that Hamilton had refused to deliver the corn, and warned them not to purchase it, or have anything to do with it, under penalty of being sued for conversion, it seems clear that the trial court was right in holding that the evidence was wholly insufficient to establish a modification of the written contract, or a division of the corn raised by Hamilton under its provisions, and did not err in directing a verdict for the plaintiff.
It is contended, however, that the corn in question did not have germinating qualities of at least 85 per cent., and therefore did not all belong to the plaintiff. In order to justify his refusal to deliver it to plaintiff, Hamilton and the Hively Seed Company claim to have made
Defendants also contend that the plaintiff’s tender of $1.20 per hundred pounds for raising the corn in question was not kept good, and therefore it could not recover in this action. To this contention it is a sufficient answer to say that no tender was required in order to maintain the action. According to the terms of the contract the com belonged to the plaintiff, and Hamilton had no right or interest in it which he could convey to another without the consent of the plaintiff. Therefore, if such consent was not given, and we have already held that it was not, plaintiff could, without a tender, maintain replevin to recover its property from any one in whose possession it was found.
It was also contended in that case that the plaintiff was estopped from asserting title, and that contention was disposed .of as follows: “It is contended that the plaintiff .is estopped to deny the right of Lamar & Co. to sell the seed, for the reason that it had given them the possession and control of it, and the apparent right to treat and dispose of it as their own. The plaintiff did not authorize Lamar & Co. to ship the flax seed to anyone but itself, and it did not know anything of the shipments until after they were made. If it is estopped to claim the seed, it is because Lamar & Co. were buying wheat and other grain, and selling it on their own account. But, in our opinion, that fact alone was insufficient to bind the plaintiff by selling the seed in question. ‘The mere possession of chattels, by Avhatever means acquired, if there be no other evidence of property or authority to sell from the true owner, will not enable the possessor to. give good title.’ ” It follows, of course, that if Hamilton could not
Finally, it is contended by defendant Hively that he was a bona fide purchaser of the corn in question, and therefore the plaintiff could not maintain this action against him. What we have heretofore said touching Hamilton’s power to deprive the plaintiff of its property by executing a chattel mortgage thereon applies with equal force to this contention of the Hively Seed Company. In addition to this, as we have already seen, before it completed its purchase of the corn Hively received notice from the plaintiff of its ownership of the corn, and a warning not to purchase it or have anything to do with it under penalty of being sued for conversion. So we are of opinion that the Hively Seed Company obtained no right or title to the property as against the plaintiff by the transaction between it and the defendant Hamilton.
From a careful examination of the whole record, we are satisfied that no reversible error was committed by the district court, and its judgment is therefore
Affirmed.