57 Neb. 150 | Neb. | 1898
This is an action of replevin brought in the district court of York county by George H. Haworth against Bartlett Y. Yoder and others. At the conclusion of the evidence the jury, in obedience to an instruction of the court, returned a verdict in favor of Haworth. To review the judgment entered upon this verdict Yoder has filed here a petition in error.
1, During the years 1898 and 1894 one Burr was em
"York, Neb., Jan. 11, 1893. “Messrs. Haworth & Sons, Decatur, III.:
"Please manufacture and deliver on board cars at Council Bluffs and ship to our address on or before the 15th day of March, 1893, the following bill of check rowers, to be sold on commission for your account, and subject to the following conditions, viz.:
No. Width of Drop. 25 planter.. 25 Haworth steel 10 Brown steel . 20 coils wire .. JO' “ • “ 4 “ “ 30 “ “ JO “ “ 4 “ “ K 4 410 “20 “40 | 20 “10 “40 Wide wheels. Remarks. Price. $24.00 10.00 Total Amt. Planter Ck. R. Name of Kind.
*152 “If all is paid cash July 1, the net price of planters to be $23.50, C. rowers $9.50 each, and ten per cent off on extras.
“1st. All machines shall be received and immediately put in good store, free of expense to you, and we be your agent for all goods furnished us for sale on your account.
“2d. The freight and storage shall be paid by us and the amount shall form no part of any expense to be paid by you. All machines shall be forwarded in accordance with your orders, only collecting on such forwarded machines the freight and drayage paid on same, and I will carry insurance at my expense in such an amount as will cover loss by fire, lightning, or tornado.
“3d. All machines shall be sold for cash, or good farmers’ notes taken in Haworth & Sons’ name, payable not later than September first next, with ten per cent interest from day of sale; and all such notes shall be indorsed and the payment guarantied by -, and given to you as collateral on my note, which we will give you for the amount of my account unpaid July 1, 1893.
“4th. All notes shall be taken upon blanks furnished by you, with all the blank spaces fully filled in with ink.
“5th. All money and notes shall be forwarded to you immediately, either by mail or express, and a receipt taken therefor, none of which shall be converted to our use till complete settlement is made.
“6th. All extra orders for machines shall be upon the same terms and conditions as above, and will only be ordered upon valid orders taken by us.
“7th. All extras shall be sold for cash, and the amount immediately remitted to you as our employer, less thirty per cent from the extra list price for rope, wire, reels, and castings.
“8th. We further agree to see that all planters and check rowers sold by us are properly connected and’operated as per directions when started to work, and be governed by the instructions,
*153 “9th. A final settlement shall be made for all machines and extras ordered, on or before June 1, 1893.
“10th. We further .agree that should we neglect or fail to sell all of said planters and check rowers by the first day of July, 1893, to store in good older, free of charge, all planters and check rowers unsold, subject to your order.
“Yours truly, Burnt & Co.
“Haworth & Sons.”
“Exhibit A. T. E. K., Rep.”
The district court proceeded upon the theory that this contract was one of agency merely, existing between Burr and Haworth; that by virtue and because of the contract the title to the proper!j furnished Burr thereunder never passed to him but remained in Haworth. We think this conclusion of the learned district judge wrong. This is not a conditional contract of sale such as was construed in Osborn v. Plano Mfg. Co., 51 Neb. 502; nor is it a contract of agency such as was construed in National Cordage Co. v. Sims, 44 Neb. 148, but it is an absolute and unconditional contract of sale such as was construed in Mach v. Drummond Tobacco Co., 48 Neb. 397. In the latter case the contract between the parties provided that Mack was thereby appointed the agent of the manufacturing company to sell its tobacco at such prices as it might direct. Mack was to be paid a certain commission on all sales made if he sold the tobacco furnished him at the price fixed by the tobacco company; and if he sold it for a less price, he was to have no commission. By the contract Mack was required to guaranty the payment of all tobacco shipped him by the manufacturer. Mack Avas to execute and deliver his notes due in sixty days for the tobacco furnished him by the manufacturer, and it was held that the contract was not one of agency for the sale of the manufacturer’s goods by Mack, but a contract of sale, and that the tobacco furnished Mack under the contract, upon its delivery to him, became his property. The contract in
Reversed and remanded.