43 N.W. 569 (Minn. 1889), Warder, Bushnell & Glessner Company v. Rublee

• Citation: 43 N.W. 569, 42 Minn. 23
• Opinion Judge: Mitchell, J.
• Party Name: Warder, Bushnell & Glessner Company v. Marks Rublee and another
• Attorney: E. H. Smalley and Boyeson & Lawrence, for appellant. W. H. Harries and Losey & Woodward, for respondents.
• Case Date: November 12, 1889
• Court: Supreme Court of Minnesota

Page 569

43 N.W. 569 (Minn. 1889)

42 Minn. 23

Warder, Bushnell & Glessner Company

v.

Marks Rublee and another

Supreme Court of Minnesota

November 12, 1889

Appeal by plaintiff from an order of the district court for Houston county, Farmer, J., presiding, refusing a new trial.

Order reversed.

E. H. Smalley and Boyeson & Lawrence, for appellant.

W. H. Harries and Losey & Woodward, for respondents.

OPINION

Mitchell, J.

The assignments of error are quite numerous, but the only question which we find it necessary to consider is whether [42 Minn. 24] the verdict was justified by the evidence. The action was brought to recover possession of certain personal property, of which plaintiff claimed to be the owner. The answer alleged, by way of defence, that the defendant Marks Rublee, for a valuable consideration and in good faith, purchased the property "from one Conrad Laufer, who was then in possession of the same as owner thereof, and who then had legal right and lawful authority to sell the same," and that thereafter the defendant Abraham Rublee bought the property from Marks. There is no doubt, on the evidence, that at the time of the pretended purchase by defendant Marks from Laufer the property in question

Page 570

belonged to plaintiff, and was in the possession and custody of Laufer, as its agent. The undisputed evidence also shows that plaintiff was a manufacturer of farm machinery, consisting of binders, reapers, and mowers, and that Laufer was, or had been, its local agent at a small place called "Eitzen" for the sale of these machines; also that, in accordance with the usual and well-known usage in that business, the plaintiff delivered to Laufer a considerable quantity of what are known in the trade as "commission extras," to be sold by him as its agent. These extras consisted of castings adapted and intended to supply the place of corresponding parts of machines of plaintiff's make which might be broken or worn out. They were listed to Laufer at the prices at which he was to sell them, and he was to receive for his services in selling a commission percentage on the amount of sales, and on an accounting of this commission business the extras which remained unsold were to be delivered back to plaintiff. The written contract of agency contains no express limitation as to the quantities in which these extras were to be sold by Laufer, but...