Mack v. Drummond Tobacco Co.

• Decision Date: 06 May 1896
• Docket Number: 6530
• Citation: 67 N.W. 174,48 Neb. 397
• Parties: ELIZABETH MACK ET AL. v. DRUMMOND TOBACCO COMPANY
• Court: Nebraska Supreme Court

67 N.W. 174

48 Neb. 397

ELIZABETH MACK ET AL. v. DRUMMOND TOBACCO COMPANY

No. 6530

Supreme Court of Nebraska

May 6, 1896

ERROR from the district court of Douglas county. Tried below before DOANE, J.

REVERSED AND REMANDED.

Thomas D. Crane and Duffie, Crane & Van Dusen, for plaintiffs in error.

G. W Shields and Curtis & Shields, contra.

OPINION

RAGAN, C. J.

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

"G H. Mack & Co., 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 six cents per pound on sales of Natural Leaf and Five A, and three cents 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 will 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, two 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 sixty 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 plaintiffs 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, 74 N.Y. 613, one Norton had given a written order to Fish Bros. for certain farm wagons at a certain price per wagon. The order further provided that Norton should pay for all wagons shipped him by Fish Bros. as soon as sold, and if sold on time he would indorse and forward the notes, with interest, and keep the wagons received under cover and insured, and that if any wagons remained unsold for twelve months after their receipt he would pay for the same. It was insisted that this order made Norton agent of Fish Bros. for the sale of the wagons shipped to him under such order, but the court of appeals held: "That the paper was an order for a purchase by the Nortons, and a sale by the plaintiffs, and was not a creation of an agency to sell on commission; that the title to the wagons was transferred to the Nortons and plaintiffs [Fish Bros.] had no title or right of possession; and that the question as to the interpretation of the instrument was one of law only."

In Kellam v. Brown, 112 N.C. 451, 17 S.E. 416, the contract provided: (1.) That Kellam would not sell his goods to another merchant in the town where Brown was in business. (2.) In consideration of this agreement on Kellam's part Brown agreed not to sell any spectacles or eye-glasses except the "Perfected Crystal Lenses" and other goods manufactured by...