McClelland v. Scroggin

• Decision Date: 26 October 1892
• Citation: 53 N.W. 469,35 Neb. 536
• Parties: JOHN W. MCCLELLAND ET AL. v. LEONARD K. SCROGGIN
• Court: Nebraska Supreme Court

53 N.W. 469

35 Neb. 536

JOHN W. MCCLELLAND ET AL. v. LEONARD K. SCROGGIN

Supreme Court of Nebraska

October 26, 1892

ERROR to the district court for Nuckolls county. Tried below before Morris, J.

AFFIRMED.

H. W Short and S. B. Pound, for John W. McClelland, plaintiff in error, contending that the contract was a sale and not a bailment of chattels, cited: Mallory v. Willis, 4 N.Y. 85; Foster v. Pettibone, 7 Id., 435; Chase v. Washburn, 1 Ohio St. 244; Lonergan v Stewart, 55 Ill. 44; Richardson v. Olmstead, 74 Id., 213; Bailey v. Bensley, 87 Id., 556; Grier v. Stout, 2 Ill. App., 602; Johnston v. Browne, 37 Iowa 200; Nelson v. Brown, 44 Id., 455; Irons v. Kentner, 51 Id., 88; Carlisle v. Wallace, 12 Ind. 252; Rahilly v. Wilson, 3 Dill. [U. S.], 420; Williamson v. Berry, 8 How. [U. S.], 544; 1 Story Bailment, 2; Baker v. Woodruff, 2 Barb. [N. Y.], 520; Norton v. Woodruff, 2 N.Y. 153; Tilt v. Silverthorne, 11 Upper Can. Q. B., 619; Wilson v. Cooper, 10 Iowa 556; Ives v. Hartley, 51 Ill. 520; Butterfield v. Lathrop, 71 Pa. 226; Marsh v. Titus, 3 Hun [N. Y.], 550; McCabe v. McKinstry, 5 Dill. [U. S.], 509; Grier v. Stout, 2 Bradw. [Ill.]., 602; Benedict v. Ker, 29 Upper Can. C. P., 410; Jones v. Kemp, 49 Mich. 9; Austin v. Seligman, 21 Blatchf. [U. S.], 506; Fishback v. Van Dusen, 33 Minn. 111.

R. D. Sutherland, for Thomas L. McClelland, plaintiff in error.

S. W. Christy, for Glazier Bros. et al., plaintiffs in error.

Robert Ryan, S. A. Searle, and T. T. Beach, contra:

Under the contract the relation of parties with respect to the chattels was that of bailor and bailee. (Nelson v. Brown, 53 Iowa 555; Sexton v. Graham, Id., 181; Schindler v. Westover, 99 Ind. 395; Foreman v. Drake, 98 N. C., 311; Dunlap v. Gleason, 16 Mich. 158; Barker v. Roberts, 8 Greenl. [Me.], 101; Fawcett v. Osborn, 32 Ill. 411; Andrus v. Mann, 92 Id., 40; McCall v. Powell, 64 Ala. 254; Pash v. Weston, 52 Iowa 675; Whitney v. McConnell, 29 Mich. 12; Clark v. Jack, 7 Watts [Pa.], 375; Becker v. Smith, 59 Pa. 469; Middleton v. Stone, 111 Id., 589; Dando v. Foulds, 105 Id., 74; Edwards' Appeal, Id., 103; Colton v. Wise, 7 Ill. App., 395; Hunt v. Wyman, 100 Mass. 198; Weir Plow Co. v. Porter, 82 Mo. 23; Holt v. Holt, 58 N.H. 276; Evansville & T. H. R. Co. v. Erwin, 84 Ind. 457; Sargent v. Gile, 8 N.H. 325; Marquette Mfg. Co. v. Jeffery, 49 Mich. 283; Emerson v. Fisk, 6 Greenl. [Me.], 200.)

OPINION

POST, J.

This case comes into this court by petition in error from the district court of Nuckolls county. On the 20th day of October, 1888, the defendant in error, Leonard K. Scroggin, filed in said court his petition in which he alleges in substance that he is the owner of certain live stock and farm implements then in the possession of the plaintiff in error McClelland upon land owned by him, Scroggin, in said county. He alleges that the defendant below, McClelland, with intent to defraud him, had confessed judgments in favor of the other defendants therein named, amounting in the aggregate to $ 10,068.80, and had procured the personal property aforesaid to be taken on execution to satisfy said judgments. In said petition it is alleged that the only right, title, or interest of the said McClelland in or to said property is such as is conferred by the following agreement, to-wit:

"This contract and agreement, made and entered into this twenty-first day of February, A. D. 1888, by and between Leonard K. Scroggin, of Mt. Pulaski, Logan county, state of Illinois, of the first part, and John W. McClelland, of Oak, Nuckolls county, Nebraska, party of the second part, witnesseth:

"That said first party hereby leases to second party for the term of two years from the first day of March, A. D. 1888, to-wit: One section of land containing six hundred and forty acres, situated in Nuckolls county, Nebraska, upon the Little Blue river, now occupied by said second party.

"Said McClelland is to farm three hundred and twenty acres of said farm in a good farmer-like manner in corn and small grain, and therefor is to pay said Scroggin one-third of the corn in the crib clean and well gathered, one-third of the small grain delivered in the market designated by said Scroggin. For the pasture land of three hundred and twenty acres said second party is to pay to said Scroggin the sum of three hundred and twenty dollars yearly, on the first day of each March, on and after March 1, eighteen hundred and eighty-nine, for and during the continuance of this lease, being six hundred and forty dollars in all. Said Scroggin further agrees to lease to said McClelland the following property to be used upon said farm, to-wit: Two hundred and six cows, one hundred and twenty-six calves, coming one year old, forty-nine horses and colts, six bulls, forty hogs, and all the implements and machinery on said farm; and it is further agreed, that when said McClelland shall pay to the said Scroggin the sum of twenty-three thousand three hundred and thirty-one dollars ($ 23,331), with interest thereon at the rate of ten per cent per annum, together with the said rents above specified, and all sums of money which said Scroggin may advance to or for said second party, with the interest thereon, then all the above described property shall be conveyed to said second party by said Scroggin, together with all the increase thereof; until such payment, said property shall be and remain the property of said Scroggin, together with the increase thereof; and should any of said property be sold by consent of said Scroggin the proceeds therefor shall be applied in payment upon said above indebtedness. All property that may be purchased by said second party to be kept and used upon said farm shall be and remain the property of said Scroggin until said above mentioned debts shall be fully satisfied and paid, and thereafter the same or the remainder thereof unsold shall be conveyed to said second party by first party. It is further agreed by and between the said parties that in case the rents above mentioned and the above described debts shall be paid at the expiration of this lease the said second party is to have the privilege at his election to renew and extend this lease, at the same rental, for the period of two years from the expiration thereof. It is further agreed by and between said parties that said second party is to feed and take care of above mentioned stock in a good and farmer-like manner during the term of this lease.

"In witness whereof said parties have hereunto subscribed their names this twenty-first day of February, A. D. 1888.

L. K. SCROGGIN.

"J. W. MCCLELLAND."

It is further alleged that since the defendant went into possession of the real estate and personal property above named, the plaintiff Scroggin has advanced to him large sums of money, and that he, defendant, has sold live stock and other property raised on said premises but has failed to account for the proceeds or any part thereof, wherefore he prays for an accounting, etc.

The answer of McClelland, after denying seriatim the several allegations of the petition as to fraud and collusion, non-performance of his undertakings, etc., alleges that on the 10th day of February, 1883, a written contract was entered into between the parties substantially the same as the one set out in the petition. The consideration named in the contract set out by defendant is $ 8,762.30, and the personal property described as being on the farm consists of thirteen horses, eighty-seven head of cattle, forty hogs, one stallion, twenty-seven head of sheep, four wagons, three cultivators, three breaking plows, one harrow, one sulky plow, one set of harness and one corn planter; said instrument to take effect and be in force from the first day of March, 1883. It is further alleged that he, McClelland, took possession under said agreement and managed said property until February 21, 1888, at which time he entered into the agreement with the plaintiff set out in the petition; that at the last named date he had fully paid the amount named in the first agreement, by his check on the bank of Scroggin & Son for $ 5,000, and cash paid on said day $ 4,271.35, and that he thereby became the owner of said property and the increase thereof, together with other property purchased by him and kept and used on the farm aforesaid, and that he had fully performed all the conditions of the agreement bearing date of February 10, 1883. It is also alleged that prior to the twenty-first day of February, 1888, the plaintiff had received from the defendant at five different times, money amounting in the aggregate to $ 19,938.44, which with interest it was understood should be applied on the $ 23,331 mentioned in the agreement executed on that day.

For a second defense it was alleged that defendant below had paid taxes on the plaintiff's real estate amounting to $ 1,092.18 and on his personal property amounting to $ 748.15; that he had made valuable and lasting improvements of plaintiff's land of the value of $ 1,000, and performed services for him in making loans and collecting money, $ 2,400; in digging wells, building fences and windmills, etc., $ 3,498; and in managing the farm and feeding and caring for plaintiff's stock, $ 1,500. He further alleges that he is the head of a family, owning neither town lots nor lands, and claims his statutory exceptions from the property in controversy.

For reply the plaintiff admits the execution of the agreement on the 10th day of February, 1883, and alleges that during the time it was in force he had advanced the defendant large sums of money under said agreement, and had furnished him live stock and implements, so that on the 21st day of February 1888, defendant was indebted to him in a large amount, and on that day they...