53 Neb. 566 | Neb. | 1898
This was replevin for a lot of clothing. The verdict and judgment were against the plaintiffs. Wyler, Ackerland & Co., wholesale dealers in clothing, were the owners of goods in controversy. In the summer of 1893 they received through their traveling salesman an order, unsigned, from Louis Schumann, of Blue Hill, for a bill of clothing of the value of over $1,100, for fall delivery. In August of that year the goods replevied were shipped
The contention of plaintiffs is that the title to the replevied property had not passed to Schumann prior to the making of the mortgages, but that the clothing was shipped by the plaintiffs to the mortgagor subject to his approval, and that, he never accepted the same. Edwaul Weinstein, plaintiffs’ traveling salesman, who' took the order for the clothing, testified that he sold Mr. Schumann the goods with the privilege of acceptance or refusal on their arrival at Blue Hill, and that the consigneé declined to accept them. This is positively contradicted both by Mr. Schumann and Lepin, his clerk, and the conflict in the testimony was resolved by the jury against the contention of plaintiff's. Paying the freight on the goods, opening the boxes in which they were shipped and f akin y therefrom two suits of clothing, and the execution of the mortgages on the goods constituted a full and unqualified acceptance thereof by Mr. Schumann. That the order given for the clothing was unsigned by Schumann does not render the sale void under the statute of frauds, since there was a delivery and acceptance of the goods. (Leg
It is urged that the court erred iu not permitting A. D. Ranney to testify that Mr. Schumann had informed witness he had not accepted the goods and had no intention of mortgaging them. Mr. Schumann was not a party to this suit; therefore the testimony was admissible only for the purpose of impeachment, and the proper foundation was not laid for the introduction of the excluded testimony.
Complaint is made of the giving of the instruction following: “If the jury find from the evidence that Schumann did accept the goods in controversy, prior to making the mortgage, then you should find for defendant.” It is urged that, it requires more than the mere acceptance of goods to take the sale out of the statute of frauds. It is true, delivery and acceptance both were indispensable. (Powder River Live-Stock Co. v. Lamb, 38 Neb. 339.) The undisputed testimony shows that the clothing was delivered to Schumann; hence it was unnecessary for the court to submit to the jury the question of delivery of the goods. There was no error in the two other instructions criticised by counsel. The judgment is
Affirmed.