Mack v. Drummond Tobacco Co.

• Decision Date: 06 May 1896
• Citation: 67 N.W. 174,48 Neb. 397
• Parties: MACK ET AL. v. DRUMMOND TOBACCO CO.
• Court: Nebraska Supreme Court

48 Neb. 397

67 N.W. 174

MACK ET AL.

v.DRUMMOND TOBACCO CO.

Supreme Court of Nebraska.

May 6, 1896.

Syllabus by the Court.

An agreement between a manufacturing company and a merchant provided: (a) That the merchant was thereby appointed agent of the manufacturing company, to sell its tobacco at such prices as it might direct. (b) The merchant was to be paid a certain commission on all sales made, if he sold the tobacco furnished at the price fixed by the manufacturer. If he sold it for less, he was to have no commission. (c) The merchant guarantied the payment of all tobacco shipped him by the manufacturer. (d) The merchant was to execute and deliver his promissory notes, due in 60 days, for all tobacco furnished him by the manufacturer. Held (1) not a contract of agency for the sale of the manufacturer's goods by the merchant on commission, but a contract of sale; (2) that tobacco furnished the merchant under this contract, upon his giving his notes therefor, became his property.

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

Replevin by the Drummond Tobacco Company against Elizabeth Mack and others. There was a judgment for plaintiff, and defendants bring error. Reversed and remanded.Thomas D. Crane and Duffie, Crane & Van Dusen, for plaintiffs in error.

G. W. Shields and Curtis & Shields, for defendant in error.

RAGAN, C.

In August, 1889, G. H. Mack & Co. were tobacco dealers in the city of Omaha, Neb., and the Drummond Tobacco Company were tobacco dealers in the city of St. Louis, Mo. On said date said parties entered into an agreement in words and figures as follows:

“G. H. Mack & Company, Omaha, Nebraska: We hereby appoint you our agent to sell our tobacco at such prices as we may require and direct by our price cards, as issued from time to time. Your compensation, until changed by us, inclusive of insurance and all other expenses, will be 6 cts. per pound on sales of Natural Leaf and Five A, and 3 cts. per pound on sales of Horseshoe, J. T., and all other of our brands, provided you have not sold or otherwise parted with our tobacco at less than our prices; but your compensation may be increased at any time by us, and will always be uniform to our agents. In consideration of the above compensation, you must warrant that every shipment made to you shall be paid for. To make good your above warranty, we require you to send us your sixty-day note or acceptance for the amount of _____ each invoice shipped to you; but, if you are willing to make us advances in cash of the amount of any shipment, we will allow you, if remitted within ten days after shipment, 2 per cent. for such cash, as additional compensation; the advances to be entirely at the risk of your reimbursing yourselves out of the goods so shipped. You to insure all goods shipped, in order to protect your above warranty, or any cash advances made. We will settle with you every sixty days, but we will not pay you any compensation if you sell our goods at less than our prices. We reserve the right to terminate this agency at any time, at our option. Drummond Tobacco Co., per John N. Drummond, Vice Pres.

“The above terms for the sale of Drummond Tobacco Company's goods are accepted. G. H. Mack & Co., Omaha, August 9, '89.”

In accordance with the provisions of this contract, the Drummond Tobacco Company shipped a quantity of tobacco to Mack & Co.; and the latter executed and delivered their promissory notes, due in 60 days, to the tobacco company, for the amount of the goods shipped. Mack & Co. pledged their tobacco stock, including certain tobacco which they had received, under the contract above mentioned, from the Drummond Tobacco Company, to certain of their creditors, by chattel mortgages. The creditors took possession of the property pledged, and the Drummond Tobacco Company brought this, an action in replevin, against the mortgagees, to recover the tobacco which it had shipped to Mack & Co. under the contract quoted above. The tobacco company had a verdict and judgment, and the mortgagees have prosecuted to this court a petition in error.

That the mortgages executed by Mack & Co. were made in good faith to secure debts owing by them to the several mortgagees is not a disputed question in this case. There are several assignments of error argued in the brief of counsel for the plaintiff in error, but as we have reached the conclusion that the judgment under review is not supported by any evidence, and is contrary to the law of the case, these errors will not be specifically considered. The sole question in the case is whether Mack & Co. were the owners of the tobacco received from the Drummond Tobacco Company under the contract quoted above, and mortgaged to the plaintiffs in error, or whether such tobacco was the property of the Drummond Tobacco Company, and was held by Mack & Co. as agents. In Fish v. Benedict,...