Warder-Bushnell & Glessner Co. v. Rublee

• Decision Date: 12 November 1889
• Citation: 42 Minn. 23,43 N.W. 569
• Court: Minnesota Supreme Court
• Parties: WARDER-BUSHNELL & GLESSNER CO. v RUBLEE ET AL.

42 Minn. 23

43 N.W. 569

WARDER-BUSHNELL & GLESSNER CO.vRUBLEE ET AL.

Supreme Court of Minnesota.

Nov. 12, 1889.

(Syllabus by the Court.)

Verdict held not justified by the evidence.

Appeal from district court, Houston county; FARMER, Judge.

E. H. Smalley, (Boyeson & Lawrence, of counsel,) for appellant.

W. H. Harries, (Losey & Woodward, of counsel,) for respondents.

MITCHELL, J.

The assignments of error are quite numerous, but the only question which we find it necessary to consider is whether 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 defense, 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 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 its provisions imply, and the other evidence in the case shows, that it was the intention and understanding that they were to be sold at retail, as persons who had purchased machines of plaintiff's manufacture might from time to time call for them. Indeed we think a court would be justifiable in taking notice of the fact that such, and not job, sales of the whole stock in mass by local agents, is the usual, if not the universal, mode of conducting the business; also that the only demand for such extras for actual use comes from those who have machines of that make, for, except to supply breakages on such machines, such extras are of no value except as iron. There was some evidence in the case showing that, prior to the sale to defendant Marks, Laufer's agency to sell had been terminated, and that the property was thereafter left with him as a mere bailee or custodian. As there was apparently nothing to advise third parties of this fact, we pass this evidence by as unimportant for present purposes. In February, 1888, Laufer assumed to sell out the whole stock of extras in his possession, amounting in value to $465, to defendant Marks for $75 in cash and $25 in trade, appropriated the proceeds to his own use, and left ...