105 Neb. 72 | Neb. | 1920
The plaintiff, Nannie I. Maurer, recovered a judgment in the district court for Douglas county against the defendant, Andrew N. Featherstone, for $1,385.87. Featherstone has appealed. The trial was had to the court, a jury being waived. The plaintiff has succeeded to all the rights of J. W. Blackstone under the contract which is the basis of the action.
The question argued turns largely upon the interpretation to be placed upon the contract, whether it be held a contract of agency, as contended by the defendant, or whether it be construed as a contract of sale, as contended' by the plaintiff. The contract, omitting the inventory, is as follows: “Omaha, Neb., May 3, 1909. Received of J. W. Blackstone the following described property on consignment, to be sold by us and the proceeds accounted for every two weeks from the date hereof. It is hereby agreed and understood that the property belongs to J. W. Blackstone, that it is to be sold by A. N. Featherstone and C. K. Jones, who are to stand all the expense of storage and selling and pay the said J. W. Blackstone every two weeks in cash 75 per cent, of the invoice price for all goods sold. C. K. Jones, A. N. Featherstone, by C. K. Jones.” Under this contract Featherstone in December, 1909, sold the stock remaining in his hands to one Coatsworth, describing it in the contract as “a certain stock of merchandise valued at $1,200, consisting of office supplies and office fixtures (office furniture),” in monthly instalment payments, taking Coatsworth’s notes therefor. In these notes Featherstone was named as payee.. The-contract between Featherstone and.,Coatsworth is also, drawn in uncertain terms, containing the elements of a conditional sale -and. a chattel mortgage. After,, making. three .monthly payments, upon his purchase, Coatsworth, mpde defap.it, ancj. the stock was turned back to Feather-. stqne.Upon (this state .of .facts the plaintiff claims that slip is entitled to recover under the contract, while the de
The contract now before us must be construed as a whole, giving meaning to its several parts in an effort to arrive at the intention of the parties. When so construed, we believe that the goods were to be treated as a bailment in the hands of the consignees, with the right of sale, and, when that right was exercised by the consignees, the relationship of debtor and creditor as between the consignor and consignees at once arose.
The case of Nutter v. Wheeler, 2 Low. (U. S. D. C.) 346, in its facts, is very similar to the case at bar. In that casé it is held: “A consignee, by the terms of his agency, may be the agent of the consignor until the consigned goods are sold, and, when they are sold, become, as between him and the consignor, the purchaser of and principal debtor for the goods sold. ’ ’ The same' principle is announced in Ex parte White, L. R. 6 Ch. App. (Eng.) 397; Depew v. Keyser, 3 Duer (N. Y.) 335. See note under Ferry & Co. v. Hall, L. R. A. 1917B, 620.
It is also argued that the plaintiff’s claim is barred by the statute of limitations; that the evidence of the plaintiff’s witness that there had been a payment of $1 upon, the claim which tolled the statute is not worthy of serious consideration. Upon this point there was a conflict in. the testimony. In such case, it being a law action, it is not the province of this court to examine the evidence further than to see that there is sufficient evidence to
Other questions were discussed relating more particularly to the rulings of the court on the questions of evidence. We deem it unnecessary to discuss them. Suffice it to say they have been considered in consultation, and we find no error in the rulings.
The judgment of the district court is
Affirmed.
