Moline, Milburn & Stoddard Co. v. Walter A. Wood Mowing & Reaping Machine Co.

• Decision Date: 16 December 1896
• Docket Number: 6864
• Parties: MOLINE, MILBURN & STODDARD COMPANY v. WALTER A. WOOD MOWING & REAPING MACHINE COMPANY
• Court: Nebraska Supreme Court

69 N.W. 405

49 Neb. 869

MOLINE, MILBURN & STODDARD COMPANY v. WALTER A. WOOD MOWING & REAPING MACHINE COMPANY

No. 6864

Supreme Court of Nebraska

December 16, 1896

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

AFFIRMED.

James H. McIntosh, for plaintiff in error:

By failure to terminate the contract by giving thirty days' notice, and by the acts of the parties thereto on and subsequent to December 1, 1891, the contract was renewed for the year 1892, and was in full force and effect at the commencement of this action. (Brady v. Flint, 23 Neb. 785; Yates v. Kinney, 19 Neb. 275; Schuyler v. Smith, 51 N.Y. 309; Critchfield v. Remaley, 21 Neb. 178; Laughran v. Smith, 75 N.Y. 205; Haynes v. Aldrich, 133 N.Y. 287; Providence County Savings Bank v. Hall, 16 R. I. 154; Coomler v. Hefner, 86 Ind. 108; Bollenbacker v. Fritts, 98 Ind. 50; Harry v. Harry, 127 Ind. 91; Smith v. Bell, 44 Minn. 524; Zippar v. Reppy, 15 Colo. 260; Wolffe v. Wolff, 69 Ala. 549; Adams v. Fitzpatrick, 125 N.Y. 124; Wallace v Devlin, 36 Hun [N.Y.] 275; Vail v. Jersey Little Falls Mfg. Co. 32 Barb. [N.Y.] 564; Tatterson v Suffolk Mfg. Co. 106 Mass. 56; Grover v Bulkley, 48 Ill. 189; Moline Plow Co. v. Booth, 17 Ill.App. 574; Alba v. Moriarty, 36 La. Ann. 680; Towne v. Grand Portage Copper Co. 55 Mich. 147; Standard Oil Co. v. Gilbert, 84 Ga. 714.)

Defendant below had a right to retain the possession of the goods in controversy herein until the balance due it under said contract was paid. (1 Parsons, Contracts [8th ed.] 96, 146; Garside v. Trent & Mersey Navigation, 4 Term [Eng.] 581; Barron v. Eldredge, 100 Mass. 455; Edwards, Bailment [2d ed.] 243; Stevens v. Biller, 25 Ch. Div. [Eng.] 31; Stevens v. Robins, 12 Mass. 179; Matthews v. Menedger, 2 McLean [U.S.] 145; Mechem, Agency, sec. 1032; Naylor v. Mangles, 1 Esp. [Eng.] 109; Moet v. Pickering, 8 Ch. Div. [Eng.] 372; Lowe v. Martin, 18 Ill. 286; Deveren v. Fleming, 53 F. 401; Stallman v. Kimberly, 121 N.Y. 393; Schmidt v. Blood, 9 Wend. [N.Y.] 267; Steinman v. Wilkins, 7 W. & S. [Pa.] 466; Morgan v. Congdon, 4 N.Y. 552.)

The parties recognized the existence of defendant's lien until late in the trial. It is therefore too late for plaintiff to dispute defendant's right to the lien. (Nunn v. Home Ins. Co. 31 Neb. 39; Ohio & M. R. Co. v. McCarthy, 96 U.S. 267; School District v. Estes, 13 Neb. 52; Harbach v. Miller, 14 Neb. 9; Rathbun v. McConnell, 27 Neb. 239.)

If this lien existed, defendant was, at the commencement of suit, entitled to possession of the goods, unless the tender which the plaintiff claims to have made divested the lien. (Tompkins v. Batie, 11 Neb. 147; McPherson v. Wiswell, 16 Neb. 625; Knox v. Williams, 24 Neb. 630; Joyce v. Whitney, 57 Ind. 550.)

The referee had no jurisdiction to pass upon questions outside of those embraced in the order of reference. (Code, sec. 298; Mills v. Miller, 3 Neb. 94; Lamaster v. Scofield, 5 Neb. 148; Kinkaid v. Hiatt, 24 Neb. 562; Grim v. Norris, 19 Cal. 140; Smith v. Pollock, 2 Cal. 92; Robinson v. O'Conner, 12 Neb. 405; Littlefield v. Waterhouse, 83 Me. 307; Henderson v. Huey, 45 Ala. 275; Delong v. Stahl, 13 Kan. 559; Brondberg v. Babbott, 14 Neb. 517; Blin v. Campbell, 14 Johns. [N.Y.] 432; Hoagland v. Creed, 81 Ill. 506; Bishop v. Nelson, 83 Ill. 601; Meredeth v. People, 84 Ill. 479; Gordon v. Hobart, 2 Story [U.S.] 243; Bell v. Sampey, 80 Ala. 372; Dudley v. Farris, 79 Ala. 187.)

E. T. Farnsworth and Wharton & Baird, contra.

References as to renewal of contract: Capps v. Adams County, 27 Neb. 360; Cooper v. Chittenden, 33 Neb. 313; Lapp v. Ryan, 23 Mo.App. 436; Belch v. Belch, 32 Mo.App. 387.

References as to defendant's right to a lien: Fieldings v. Mills, 2 Bos. [N.Y.] 489; Wiles Laundering Co. v. Hahlo, 105 N.Y. 234; Chase v. Westmore, 5 M. & S. [Eng.] 180; Cowell v. Simpson, 16 Ves. [Eng.] 276; Bass v. Upton, 1 Minn. 292; Farguson v. Winslow, 34 Minn. 384; Coit v. Waples, 1 Minn. 134; Stoddard Mfg. Co. v. Huntly, 8 N.H. 441; Chandler v. Belden, 18 Johns. [N.Y.] 157; Cummings v. Harris, 3 Vt. 244; Stickney v. Allen, 76 Mass. 352; Stillings v. Gibson, 63 N.H. 1; Union Slate Co. v. Tilton, 73 Me. 207.

In reply to the contention that plaintiff below had recognized defendant's lien reference was made to the following cases: McCullough v. Hellweg, 66 Md. 269; Hoxsie v. The Reuben Doud, 46 F. 803; Macky v. Dillinger, 73 Pa. 86; Hayes v. Campbell, 63 Cal. 143; Adams v. Clark, 9 Cush. [Mass.] 215; Staat v. Evans, 35 Ill. 456; Chinn v. Bretches, 42 Kan. 316; Carlson v. Beckman, 35 Neb. 395; Mattocks v. Young, 66 Me. 459.

Defendant having submitted the disputed questions to the referee, is estopped from denying the authority of the referee to pass upon those questions. (Baird v. City of New York, 74 N.Y. 382; Quinn v. Lloyd, 7 Rob. [N.Y.] 157; Porter v. Parmly, 6 J. & S. [N.Y.] 490; McShane v. Gray, 13 Iowa 504; Hewitt v. Egbert, 34 Iowa 485; Armstrong v. Percy, 5 Wend. [N.Y.] 536; Bloore v. Potter, 9 Wend. [N.Y.] 480; Cowenhoven v. Ball, 118 N.Y. 231; Vose v. Cockroft, 44 N.Y. 415; Waterman v. Connecticut & P. R. R. Co. 30 Vt. 610; Burt v. Oneida Community, 33 N.E. [N.Y.] 307; Taylor v. First Congregational Church, 34 N.E. 655 [Ind.]; Hatch v. Watkins, 1 Martin, n. s. [La.] 154; Hosford v. Stone, 6 Neb. 378; Shain v. Peterson, 33 P. 1085 [Cal.]; Huffman v. Beever, 69 Hun [N.Y.] 557.)

OPINION

The opinion contains a statement of the case.

POST, C. J.

This was an action of replevin in the district court for Douglas county by the Walter A. Wood Mowing & Reaping Machine Company, a corporation (hereafter called the "plaintiff"), against the Moline, Milburn & Stoddard Company (hereafter called the "defendant") to recover possession of certain farm machinery and extras and attachments thereto, together with a quantity of binding twine, of the alleged value of $ 28,626.50, and which was, as claimed, wrongfully detained by the defendant. An answer was filed alleging that on the 1st day of October, 1888, the parties hereto entered into a written contract, to which reference will hereafter be made, whereby the defendant agreed to receive all goods of the character described in the petition which might be consigned to it by the plaintiff, to store said goods in its warehouse in the city of Omaha, and to reship the same upon the order of the plaintiff, on terms therein specified; that said agreement had been renewed from year to year and was in full force and effect at the time of the commencement of the action; that pursuant thereto the defendant company received from the plaintiff large quantities of machinery, binding twine, etc including the property described in the petition, and which, with the exception of the property so described, has been sold or reshipped by order of the plaintiff; that a settlement was had between the parties, of the storage account, at the close of the year 1891, showing a balance in favor of the defendant under said contract of $ 3,482.09, which is still due and owing to it, and that there is due from the plaintiff in addition thereto, as charges for storing the property in controversy, the further sum of $ 2,571.55. The defendant was, it is alleged, entitled to the possession of the property in controversy at the time of the commencement of the action, by virtue of a lien thereon to the amount of its charges as aforesaid, in the aggregate sum of $ 6,053.64. It also claims damage for the wrongful detention of said property by the plaintiff in the sum of $ 5,000. There was a reply admitting the execution of the agreement set out and the receipt by the defendant of the property in controversy thereunder, but denying that said agreement was renewed, as charged, for the year 1892, or subsequent years. It is admitted therein that there was a settlement in 1891 of the storage account for that year, by which a balance was shown in plaintiff's favor of $ 3,482.09. It is, however, alleged that there was at the same time a settlement of the plaintiff's account for goods unaccounted for in the years 1890 and 1891, showing a balance in its favor of $ 581.89. The issues thus joined were, by agreement of parties, submitted to a referee "for an accounting of the amount due the defendant, and of the amount of goods, if any, not taken by the sheriff, * * * and the value thereof, and to report his findings," etc. The referee subsequently submitted his findings and conclusions of law, which, so far as material in our view of the questions presented, are as follows:

"That on October 1, 1888, the Walter A. Wood Mowing & Reaping Machine Company, plaintiff herein, and the Moline, Milburn & Stoddard Company, defendant herein, entered into and executed in writing a contract in words and figures following, to-wit:

"'This contract and agreement, entered into this 1st day of October A. D. 1888, by and between Moline, Milburn & Stoddard Company, a corporation organized under the laws of the state of Ohio, and doing business at Omaha, Nebraska, and Des Moines, Iowa party of the first part, and Walter A. Wood Mowing & Reaping Company, of Hoosick Falls, New York, and St. Louis, state of Missouri, party of the second part, witnesseth:

"'The party of the first part agrees to receive all goods of the different kinds mentioned in this contract which may be consigned to them by the said party of the second part and store same in their warehouse, and to reship any such goods or parts of same, on orders of said party of the second part of their authorized agents, at the following prices, viz.: * * * Party of the second part agrees to furnish one competent man to assist in shipping extras from July 1 to September 1, 1889, free of charge to party of first part; also agrees to allow party of the first part a commission of 33...