Goodman v. Kennedy
| Decision Date | 18 March 1880 |
| Citation | 4 N.W. 987,10 Neb. 270 |
| Parties | CHARLES F. GOODMAN, PLAINTIFF IN ERROR, v. SIMON H. KENNEDY AND OTHERS, DEFENDANTS IN ERROR |
| Court | Nebraska Supreme Court |
ERROR to the district court for Douglas county. The action was in replevin to recover possession of some twelve gross of "Pinus Canadensis," so-called dip, manufactured by Kennedy for Goodman, under a written contract existing between them. After the commencement of the action, Kennard & Forsythe, claiming an interest in the property replevied were made parties defendant, and upon final hearing, before SAVAGE, J., judgment was rendered in their favor.
AFFIRMED.
Redick & Connell, for plaintiffs in error, cited Aldridge v Johnson, 7 Ellis & Blackburn, 885. Eiseley v Malchow, 9 Neb. 174. Gen. Stat., 713. Hooker v. Hammill, 7 Neb. 231. Moore v. Kepner, Id., 295.
Webster & Gaylord, for defendants in error, cited Benj. on Sales, § 318. 1 Pars. on Cont., 6th Ed., 527. Macomber v. Parker, 13 Pick. 175. Higgins v. Chessman, 9 Pick. 7. Comfort v. Kiersted, 26 Barb. 472. Pettengill v. Merrill, 47 Me. 109. Green v. Hall, 1 Houst., 506. McConike v. N. Y. & E. R. R. Co., 20 N.Y. 495. Marble v. Moore, 102 Mass. 443. Terry v. Wheeler, 25 N.Y. 520.
The judgment complained of was rendered in an action for the replevy of an article of personal property called "Pinus Canadensis," of which the defendant Kennedy was the manufacturer. The plaintiff claimed and sought the possession of this property as the absolute owner thereof, by virtue of a contract between himself and Kennedy, of which the following is all that is essential in this controversy, viz.:
By the express terms of this agreement the goods were to be delivered to Goodman in Omaha. Delivery and payment were made concurrent acts, and the enforcement of either dependent on the other. Therefore, under the law of sales of personal property, the ownership was not transferred from Kennedy to Goodman until a voluntary delivery was made. It is true that, under the contract, Kennedy ought to have handed over the goods as requested, but, until he did so, they were his own property, to do with as he saw fit, being of course liable for any damage Goodman might sustain in consequence of a failure to perform his engagement. His failure, or refusal, to make delivery as he had agreed, however, did not divest him of his ownership, nor authorize Goodman to seize the goods without his consent. And the evidence very clearly shows that the parties themselves, to the extent that the contract was performed, so understood its import. Goodman himself testifies that he never credited Kennedy on his books until the goods were actually delivered; and doubtless, had a quantity of the article manufactured and prepared "for shipment" been accidentally destroyed before it had been received by Goodman, he would hardly have considered the loss as his own. But it would have been if he could maintain an action of replevin under the circumstances of this case.
The plaintiff in replevin must recover, if at all, on the strength of his own title, and not because of the weakness of his adversary's. Goodman, therefore, is not in a position to criticise the alleged sale of the goods in controversy to the defendants Kennard & Forsythe. That is a matter between that firm and Kennedy, and so long as they are agreed that a sale was made, that ends it, so far as this action is concerned. Had the goods been seized in attachment by a creditor of Kennedy it would have been very different, and there may be doubt whether, in such a controversy, Kennard & Forsythe could have held them under the state of facts disclosed by the evidence before us. Such being our views concerning the merits of the case it is hardly necessary to notice the minor questions presented by the assignment of errors, but we will refer briefly to some of the more important of...
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