Edward Thompson Co. v. Baldwin

Decision Date18 September 1901
Citation87 N.W. 307,62 Neb. 530
PartiesEDWARD THOMPSON CO. v. BALDWIN.
CourtNebraska Supreme Court
OPINION TEXT STARTS HERE
Syllabus by the Court.

1. Evidence held insufficient to support the plea of payment.

2. In a contract for the conditional sale of books, the deferred payments being evidenced by the promissory notes of the vendee, it was claimed a material alteration had been made by the interlineation of the words “interest at six per cent. on notes remaining over a year.” Held such words to be only descriptive of the notes referred to, and in the nature of a memorandum reference, and that such words did not constitute a material alteration of the contract of sale; the notes referred to being the instruments which determined the rate of interest they bore.

3. Where a series of notes were given in payment of books sold conditionally, and proof was tendered showing that a part of the notes had been materially altered, held that such alteration did not vitiate the contract of conditional sale or the unpaid notes, regarding which no alteration was claimed.

4. Where the property had been delivered to the vendee under a contract of conditional sale, and a part of the notes given for the purchase price, against which no valid defense existed, were past due and unpaid, held, under the terms of the contract, the vendor might lawfully regain possession of the property, and terminate the contract.

Error to district court, Douglas county; Slabaugh, Judge.

Action by the Edward Thompson Company against A. E. Baldwin. Verdict for defendant, and plaintiff brings error. Reversed.Richard S. Horton, for plaintiff in error.

John D. Ware and John H. Grossman, for defendant in error.

HOLCOMB, J.

In the trial court the jury were instructed peremptorily to return a verdict in favor of the defendant, which was accordingly done. On the verdict thus returned, after overruling a motion for a new trial, judgment was rendered against the plaintiff, from which it prosecutes error proceedings from the court below to obtain a review of the trial therein had. The plaintiff began an action in replevin for the recovery of the possession of 23 volumes of the American and English Encyclopedia of Law, then held by the defendant under a contract for the sale of the property on condition. By the contract of sale the title to the property was not to pass to the defendant until the books were paid for, and, in the event of his failure to pay any of the installments according to the stipulations in the contract, the plaintiff was authorized to take into its possession the property sold conditionally, and terminate the contract. The defendant filed a general denial. He asked judgment for a return of the property, on the grounds of payment and an alleged material alteration of the contract of sale. The principal and substantial ground upon which the defendant seeks to avoid responsibility under his contract, as we take it from the record, is the alleged alteration of the instrument. The plea of payment is puerile, and unworthy of serious consideration. It is disclosed that at the time defendant received the books under his contract he paid $12 in cash, and executed and delivered his 9 promissory notes of $14 each, making a total of $138,--the contract price. A receipt was given for the cash and notes, and it is contended that this, in connection with defendant's testimony that he “paid all,” constitutes evidence justifying the conclusion that full payment had been made. The evidence does not warrant the conclusion, and this defense must be brushed aside without further notice. Under the contract of sale, the defendant obligated himself to pay $12 cash on delivery of the books, and to execute his 9 notes, payable to plaintiff's order, without interest, for $14 each, the first payable in 2 months, and one falling due every 2 months thereafter, the last one falling due in 18 months from date. There was also an order to send defendant the succeeding volumes of the work as rapidly as published until the complete number of volumes had been delivered. It is stated: “I agree...

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