63 Neb. 617 | Neb. | 1902
In November, 1897, Gunder 0. Qualset and Millie A. Brink, the latter representing a concern known as the Brink Drug Company, entered into a contract in writing which is as follows:
“This agreement, made and entered into by and between Gunder O. Qualset of Newman Grove, Madison county, Nebraska, party of the first part and Millie A. Brink of Fremont, Dodge county, Nebraska, party of the second part, witnesseth: The said first party agrees to sell his stock of drugs and toilet articles, and the fixtures in his drug store at St. Edwards, Boone county, Nebraska, to the said second party, and the said second party agrees to buy said drug stock and fixtures on the terms and conditions following, to-wit: The invoice price of said stock is $1,417.50 on November 10, 1897, and the said second party agrees to pay for said goods in payments as follows: Four hundred seventeen and 50-100 dollars cash in hand; one thousand dollars, ($1,000-00) in payments as follows: Fifty ($50.00) dollars on the first day of each month for
“Signed in duplicate this — day of November, 1897.
“In presence of:
“C. A. Randall, Gunder O. Qualset,
“Earl 0. Brink. Millie A. Brink.7
The drug company went into possession, in pursuance of the terms of said agreement, and conducted the business, to all outward appearance, as owners of the stock. The agreement was. not filed for record until the 2d day of December, 1898. On the first day of December, 1898, Qualset assigned his interest in the contract, and all his rights thereunder, to David A. Lewis, the plaintiff below. On the 2d day of January, 1899, the plaintiff took possession of the stock, claiming under the contract. On the 11th day of January, thereafter, judgments were rendered, some against the individual members of the drug company, others against it by name, on which executions were issued, placed in the hands of a constable, the defendant below, for service and levied on the stock of goods in question, then in the possession of the plaintiff in this case. The plaintiff brought replevin, alleging general ownership. A trial resulted in a verdict for the plaintiff.
The defendant insists that the instrument in question is a chattel mortgage, and that, as the plaintiff alleged general ownership, such allegation is not satisfied by the proof of possession under such instrument. The answer to that is that it is the policy of the law to. give effect to the intentions of the parties in the construction of the writing which they have made the final repository of the propositions upon which their minds finally met in common assent. By the express terms of this agreement, the title, that is the general ownership, was to remain in the vendor until all the terms and conditions on the part of the vendee had been kept and performed. Having thus expressed themselves unambiguously, we can see no reason why this court should strain after reasons for thwarting their obvious purpose. It is true that at first sight the authority given the vendee to dispose of the articles composing the stock in the usual course of trade, and supply their place with others of like nature, would seem to be inconsistent with the plaintiff’s claim of general ownership. But it must be kept in mind that the parties to the contract, at the time it was made, had in contemplation the stock in its entirety, and regarded it as a unit. That part of the contract was fully executed, was treated by the parties as valid and binding, and neither they nor anyone claiming under them, or either of them, under the facts in this case, can now be heard to challenge its validity. As bearing on this question, see Richardson Drug Co. v. Teasdall 52 Nebr., 698; Keystone Mfg. Co. v. Casselius, 76 N. W. Rep. [Minn.], 1028. But it is urged by the defendant, that the failure to -file the contract for record operated as a fraud on the execution creditors whose indebtedness against the drug company accrued between the date of such contract and the time it was filed for record. That such contract would operate as a fraud on persons advancing credit to the vendee, on the faith of its apparent ownership of the stock, is undoubtedly true. But that proposi
The defendant devotes considerable space to discussion of the proposition that where the possession of property described in a chattel mortgage remains in the mortgagor, and the mortgage, or a copy thereof, is not filed as required by law, the mortgage is absolutely void as to the creditors of the mortgagor, no matter whether they have actual notice or not. 'That proposition is true. Spaulding v. Johnson, 48 Nebr., 830. But there is another proposition of law equally true, and which also has the sanction of this court, and that is that a chattel mortgage becomes valid as to creditors on the date of the filing or on the date of taking actual possession of the property by the mortgagee. Forrester v. Kearney Nat. Bank, 49 Nebr., 655; Meyer v. Miller, 51 Nebr., 620. The term “creditors,” as used in the cases just cited, means attaching or execution creditors. In Forrester v. Kearney Nat. Bank, supra [p. 658], it is said: “A chattel mortgage becomes valid as to creditors as of the date of the filing of the same or the taking of actual possession of the property by the mortgagee.” A creditor, as such, except under certain circumstances not shown in this case, has no lien upon nor interest in the property of his debtor before the levy of an attachment or execution. In this case, before they acquired any interest by the levy of their executions, the
The defendant complains of an instruction of the court as to the effect of some of the judgments upon which the executions in question were issued. But the availability of any such judgments as a defense in'this case involved a finding that the instrument in suit was invalid as between the plaintiff and the judgment creditors. From the nature of the verdict, the jury must have found all disputed facts affecting the liability of the instrument in favor of the plaintiff. Hence, whatever error there may have been in such instruction is error without prejudice.
The defendant also complains of instruction No. 10, which is as follows: “You are instructed that it is incumbent on the part of the plaintiff to identify the goods claimed in this action as the goods mentioned in the contract between Millie A. Brink and G-under O. Qualset, and in no case in this action can he recover other goods than those so identified, unless you further find from the evidence that Earl C. Brink acting on behalf of the Brink drug company, surrendered the possession of the same to the plaintiff under and by virtue of the conditional contract introduced in evidence by him, before the judgments introduced in evidence were obtained.” The objection to this instruction is that it permits the jury to find in favor of the plaintiff as to those parts of the stock that were added to it after the instrument in question was executed, and while the vendee was in possession of the property and disposing of the same in the usual course of trade, which were surrendered to the plaintiff, under and by virtue of the instrument in question. There is sufficient to sustain a finding that the stock thus replenished was voluntarily surrendered to the plaintiff by the vendee in pursuance of the contract as construed by the parties themselves. Whatever may be said as to the validity of
We recommend that the judgment of the district court be affirmed.
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is
Affirmed.