102 Neb. 710 | Neb. | 1918
The plaintiff brought this action in the district court for Adams county against these appellants, who were the president and secretary of the Harvard Cooperative Grain & Live Stock Company, a corporation. He claimed that the corporation had received his wheat and had converted it to their own use, and were, therefore tort-feasors, and that the president and secretary, having assisted the corporation in doing so, were joint tort-feasors. '
The principal discussion is as to whether this wheat-left at the elevator of the corporation was a bailment or a sale of the wheat. The evidence is very strong, if not conclusive, that the wheat was left at the elevator under an agreement of sale, the price to be determined- at the market price for wheat when the plaintiff should demand payment. Under such circumstances, of course, the plaintiff could not maintain an '.action in tort against some of the officers of the corporation purchasing the wheat. There is, however, another question presented in the record which seems
.
And, again, in Standard Varnish Works v. Haydock, 143 Fed. 318: “One from whom a bankrupt obtained goods by means of fraudulent representations, which' were not paid for, has his election to confirm the sale and assume the position of a creditor for the price, or to repudiate the sale and recover the goods, but, having made such election, with knowledge of the facts, by proving his claim and voting as a creditor in the bankruptcy proceedings, he is concluded thereby, and cannot thereáfter withdraw his claim and recover the goods.”
The judgment of the district court is reversed and the action dismissed.
Reversed and dismissed.