Goodman v. Kennedy

• Decision Date: 18 March 1880
• Citation: 4 N.W. 987,10 Neb. 270
• Parties: GOODMAN v. KENNEDY AND OTHERS.
• Court: Nebraska Supreme Court

10 Neb. 270

4 N.W. 987

GOODMAN

v.KENNEDY AND OTHERS.

Supreme Court of Nebraska.

Filed March 18, 1880.

Error from Douglas county.

Reddick & Connell, for plaintiff.

____ Ballou, for defendant.

LAKE, J.

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.: “S. H. Kennedy, of New York City, hereby agrees to manufacture his hemlock remedies in Omaha, and exclusively for C. F. Goodman; and said Goodman agrees to buy said S. H. Kennedy's hemlock remedies at the following prices; * * * and said Kennedy is to deliver the same as manufactured, and up to the standard, to the said Goodman, in Omaha, ready for shipment, * * * and assorted as the trade may demand, or the said Goodman may order, and which amounts said Goodman hereby agrees to pay when the goods are so delivered; and said Kennedy further agrees not to establish any other than the Omaha manufactory, or agency, or sell to other parties in the United States, for the term of three years from this date.”

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 depended 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 damages 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 show that the parties themselves, to the extent that the contract was performed, so understood its import. Goodman himself testified 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 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 adversaries'. Goodman, therefore, is not in a situation to criticise the alleged sale of the goods in controversy to the defendants Kennard & Forsyth. 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 & Forsyth could have held them, under the state of facts disclosed by the evidence before us. Such...