Hayden v. Frederickson

• Decision Date: 18 October 1899
• Citation: 59 Neb. 141,80 N.W. 494
• Parties: HAYDEN ET AL. v. FREDERICKSON.
• Court: Nebraska Supreme Court

59 Neb. 141

80 N.W. 494

HAYDEN ET AL.

v.FREDERICKSON.

Supreme Court of Nebraska.

Oct. 18, 1899.

Syllabus by the Court.

1. Where a cause is brought a second time to this court, the first decision will be deemed the law of the case, not merely as to the points expressly decided, but to all questions presented by the record, and necessarily involved in the decision, and ordinarily will not be re-examined.

2. Where personal property is in the possession of the buyer at the time of the sale, and no other place of delivery is specified, no formal delivery is necessary to maintain an action for the purchase price.

3. When a contract of sale of chattels provides for the taking of an inventory by the parties, the buyer cannot urge as a defense to the action to recover the purchase price that the inventory was made by the vendor alone, when the vendee was given an opportunity to participate therein and refused to do so.

4. It is error to give an instruction which withdraws from the consideration of the jury a material issue of fact.

5. It is error to instruct the jury that “expert evidence is of the very lowest order, and is the least satisfactory.”

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

Action by Nicholas Frederickson against Hayden Bros. Judgment for plaintiff, and defendants bring error. Reversed.C. J. Smyth, for plaintiffs in error.

Geo. W. Cooper and John E. Reagan, for defendant in error.

NORVAL, J.

This cause was before us and decided at a prior term. Hayden v. Frederickson, 55 Neb. 156, 75 N. W. 530. Subsequently a trial was again had in the district court, which terminated in a verdict in favor of plaintiff, and from the judgment entered thereon the defendants have prosecuted error.

The action was to recover the purchase price of certain patterns alleged to have been sold and delivered by plaintiff to defendants in pursuance of a written contract made by the parties, a copy of which is contained in the former opinion, to which reference is made. On September 16, 1893, Nicholas Frederickson was the owner of the dry-goods department of what was known as the “Bell Department Store,” in the city of Omaha. On said date Hayden Bros., the defendants, purchased all the stocks in said department store, including that belonging to plaintiff. The contract between defendants and plaintiff stipulated, among other things, for the purchase “of all patterns that are staple and down to date,” and that the purchasers should pay plaintiff therefor “cash at completion of inventory at the rate of ninety (90) per cent. of the original contract price of said goods, without discount.” The defendants refused to pay for the patterns, claiming that they did not comply with the terms and conditions of the contract, in that they were not staple and down to date. Testimony bearing upon the marketable condition of the patterns was adduced by the respective parties, and expert witnesses were likewise called and examined by the defendants upon that issue in the case. It is argued by counsel for defendants that the judgment is erroneous, because it was not shown that the patterns had been delivered to and accepted by the defendants. This question was presented upon the former hearing, and it is contended by plaintiff that the decision then rendered is stare decisis. The rule is that the determination of questions presented to this court in reviewing the proceedings in a cause in the district court becomes the law of the case for all subsequent proceedings, and, ordinarily, will not be made a subject of re-examination. Coburn v. Watson, 48 Neb. 257, 67 N. W. 171;Fuller v. Cunningham. 48 Neb. 857, 67 N. W. 879;Association v. Kettenbach, 55 Neb. 330, 75 N. W. 827;Mead v. Tzschuck, 57 Neb. 615, 78 N. W. 262. And this rule applies not only to all points actually decided, but to all questions presented by the record, and necessarily involved in the decision. Mulford v. Estudillo, 32 Cal. 131; Headley v. Challiss, 15 Kan. 602; Crockett v. Gray, 31 Kan. 346, 2 Pac. 809. While we were asked on the former appeal to reverse the judgment theretofore rendered on the same ground now urged for a reversal, we did not then consider nor decide the point, nor express an opinion upon the subject. The judgment of reversal was placed upon other grounds, and the decision did not necessarily involve the matter now urged upon our attention, and the rule of stare decisis cannot be successfully invoked by this plaintiff.

To entitle plaintiff to maintain an action like the present, for goods sold and delivered, it was necessary...