McCormick v. Stevenson

• Decision Date: 21 June 1882
• Citation: McCormick v. Stevenson, 13 Neb. 70, 12 N.W. 828 (Neb. 1882)
• Parties: C. H. & L. J. MCCORMICK, PLAINTIFFS IN ERROR, v. R. F. STEVENSON, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

12 N.W. 828

13 Neb. 70

C. H. & L. J. MCCORMICK, PLAINTIFFS IN ERROR, v. R. F. STEVENSON, DEFENDANT IN ERROR

Supreme Court of Nebraska

June 21, 1882

ERROR to the district court for Cuming county. Tried below before BARNES, J.

REVERSED AND REMANDED.

J. C Crawford, for plaintiffs in error, cited 6th Wait's Actions and Defenses, 163, et seq.

R. F Stevenson, pro se.

The notes were made in Illinois, and the laws of that state govern this case. Under those laws the machine would be liable to execution or attachment against the maker of the notes. McCormick v. Hadden, 37 Ill. 370. Murch v. Wright, 46 Id., 487. Latham v. Sumner, 89 Id., 233.

OPINION

MAXWELL, J.

This is an action to recover for the alleged conversion by the defendant of certain property belonging to the plaintiffs. A verdict was rendered in the court below in favor of the defendant, upon which judgment was rendered. The plaintiffs bring the cause into this court by petition in error. It appears from the record that in July, 1877, the plaintiffs sold to J. A. Nason, of West Point, Neb. an Advance reaper and mower for the sum of $ 180.00, taking three notes therefor, each for the sum of $ 60.00, with interest from date. The first of said notes was due on the first day of January, 1878; the second, on the first day of January, 1879 and the third on the first day of January, 1880. Each note contained the following provision: "The express condition of the sale and purchase of the 1876 Advance for which this note is given is such that the title, ownership, or possession does not pass from the said C. H. & L. J. McCormick until the note and interest is paid in full, and the said C. H. & J. L. McCormick have full power to declare this note due and take possession of said Advance whenever they deem themselves insecure, even before the maturity of this note."

In October, 1877, one Gould, an agent for plaintiffs, submitted these notes to the defendant. There is a conflict in the testimony as to whether Mr. Stevenson actually took the notes in his hands, but there is no doubt that he knew their contents. He informed Gould that he did not think the notes were very good, and advised him to have certified copies of the same filed with the county clerk as security under the law of 1877. This was not done. In January, 1875, one J. B. Thomson recovered a judgment against Nason for the sum of $ 55.33 and costs. In October, 1877, and after Gould had called on the defendant, an execution was issued and levied upon the reaper in question, which was bid in by the defendant as attorney for Thomson. And this is the conversion complained of. Two questions are presented by the record:

First. Did the plaintiffs have a lien upon the property in question?

Second. Do the acts of the defendant, as shown by the testimony, amount to conversion?

First. In the case of Aultman v. Mallory, 5 Neb. 178, this court held that a sale and delivery of goods on condition that the property was not to vest in the purchaser until the purchase money was paid did not pass the title to the vendee until the condition was performed. That decision is sustained by the clear weight of authority, and in the absence of a statute changing...