Northwestern State Bank of Hay Springs, Neb. v. Silberman

• Citation: 154 F. 809
• Decision Date: 05 July 1907
• Docket Number: 2,552.
• Parties: NORTHWESTERN STATE BANK OF HAY SPRINGS, NEB., et al. v. SILBERMAN et al.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

154 F. 809

NORTHWESTERN STATE BANK OF HAY SPRINGS, NEB., et al. v. SILBERMAN et al.

No. 2,552.

United States Court of Appeals, Eighth Circuit.

July 5, 1907

This is an action for conversion, growing out of the following state of facts: The Peters & Williams Company, a corporation of the state of Nebraska, was engaged in conducting a sheep ranch near Hay Springs in said state. The defendant in error Silberman Bros. was a copartnership firm residing and doing business at Chicago, Ill., as wool merchants. One David T Taylor, residing at Hay Springs, was acting as agent for Silberman Bros. in buying and shipping wool to them. On the 13th of April, 1905, Taylor as such agent made a contract with said Peters & Williams Company for the purchase of the 1905 wool clip of the sheep on their ranch, evidenced by the following written memorandum:

'Hay Springs, Neb., April 13, 1905.

'This is to certify that we have sold to Silberman Bros. 6,600 fleeces, about 50,000 pounds of wool, which we agree to deliver to said Silberman Bros., at Hay Springs, on or about the 12th to 15th day of June, 1905; the consideration being 18 cents per pound, we hereby acknowledge having received the sum of two thousand dollars as part payment thereon, on wool warrant, said wool to be from native sheep in merchantable order and condition, well tied and honestly packed, and will defend the title to said wool against all and every person whatsoever.

'(Signed)

Peters & Williams Co.,

'By H. A. Peters.'

The two thousand dollars mentioned in the memorandum was paid at the time by check drawn by Taylor on Silberman Bros. The wool in sacks was brought by H. A. peters, the representative member of said Peters & Williams Company, to the station of the Chicago & Northwestern Railway Company at Hay Springs on the 14th day of June, 1905. The weighing of the wool was begun on that day, and as weighed was branded by Taylor with the letter 'P' on one end, and a 'diamond S' on the other. The 'P' indicated from whom the wool was purchased; and the 'diamond S' was Silberman Bros.' brand. When the weighing was complete the sacks were loaded into the cars of said railway company at said station, which cars, the evidence discloses were ordered by Taylor for the purpose of shipping the wool.

For some reason not satisfactorily explained, on the evening of the 14th of June said Peters went to Chadron, Neb., some 20 miles or more distant, and on the next morning telephoned therefrom to Taylor not to load the wool until he returned. Missing his train at Chadron, he hired a team and drove to Hay Springs, arriving perhaps between 11 and 12 o'clock, and at once called on Taylor at his bank. While there is a conflict in the testimony of Taylor and Peters as to the conversation then had between them respecting the manner of paying for the wool, the testimony on behalf of the defendant in error tended to show that Peters said to Taylor: 'It is a little late now, I guess we won't load any wool until after dinner. ' Taylor replied: 'All right. Now, Herman (meaning Peters), for the balance of this money for this wool, I will either give you a draft on Silberman Bros. or our bank draft on Omaha. ' Peters replied: 'That's all right, either one is good. ' Thereupon they resumed loading the wool into the car about 1 o'clock and finished between 5 and 6 p.m. Taylor closed the car, when the parties returned to Taylor's bank and computed the weights and ascertained the amount due on the wool, amounting to $7,298.02. Thereat Taylor inquired of Peters whether he would have the sight draft on Silberman Bros. or his (Taylor's) bank draft on Omaha. Peters answered that he wanted the currency. Taylor replied, in substance, that if he (Peters), when they first talked over the matter, had said he wanted the currency, he would have had it there to-morrow morning; that he would wire for the money, which would arrive at Hay Springs Saturday morning, the 17th; that he would let the wool stand on the track until the money came. Peters claimed in his testimony that Taylor said he would have the money there Friday morning, the 16th. Taylor then went to the railroad agent and directed him to seal up the cars and not to issue bills of lading to any one. He wired at once, both to Silberman Bros. at Chicago, and to Omaha, for the money. Seven thousand dollars arrived Saturday morning, the 17th, from Omaha; and $7,000 also came from Chicago on the morning of the 18th. Peters went to Taylor's bank on the 16th and asked if the money had come. Taylor's testimony is that he told Peters on the day previous that the currency could not get there before the morning of the 17th, and that Peters answered that he knew the draft or check was good, but he wanted to beat those Jews, Silberman Bros., and offered to pay Taylor the amount of his commission on the purchase of the wool, amounting to about $250.

The evidence shows that at the time the delivery of the wool was due its market value had gone up five or six cents per pound over the contract price. Peters left, and on the 16th day of June made sale of the wool to the plaintiff in error the Northwestern State Bank, which brought an action of replevin in the state court against said Taylor, the Chicago & Northwestern Railway Company, and Silberman Bros., for the recovery of the wool. Silberman Bros. being nonresidents of the state and not found there, no service of the summons was made on them, and they did not appear to the merits of the action.

After delivery of the wool by the sheriff on the delivery bond to the bank, it shipped and sold it to a purchaser, who so appropriated and changed it as to destroy its identity. Thereafter Silberman Bros. brought this suit against the bank and others for conversion of the wool, and on trial to a jury obtained verdict against the bank for the sum of $11,779.40. To reverse the judgment rendered thereon the bank prosecutes this writ of error.

H. C. Brome (A. H. Burnett and A. G. Fisher, on the brief), for plaintiffs in error.

Irving F. Baxter (James H. Van Dusen, on the brief), for defendants in error.

Before SANBORN and HOOK, Circuit Judges, and PHILIPS, District Judge.

PHILIPS District Judge, after stating the facts as above, .

It is to be conceded that the contract of April 13, 1905, was executory in its character. While it recites that Peters & Williams Company have sold to Silberman Bros. so many fleeces, or about 50,000 pounds of wool, the contract further disclosed that several things were thereafter to be done on the part of the vendor in execution of the transaction. The fleeces at that time were on the sheep, and, as the sheep themselves were not sold, it remained for the vendor to sever the fleeces and put the wool in condition for delivery. The vendor was to deliver it at a certain time and place, and the wool was subject to the further condition of being taken from native sheep and in good merchantable order and condition. So that until these things were done by the vendor, and these conditions were complied with, the contract could not be executed on its part. If the sheep had died before the fleeces were severed, or if after being severed, and before the wool had been delivered at Hay Springs, it had been destroyed by fire or other means, the loss would have fallen upon the vendor.

It is furthermore to be conceded that a sale of personal property to be complete by delivery at a given place, and at a certain price to be paid by the vendee, in the absence of an express contract at a later date, the implication of law is that the payment is to be made in cash at the time and place of delivery. While the title to the property would not pass to the vendee until the purchase money was paid it was competent for the parties at the time for delivery to agree either upon an extension of the time of payment or as to the manner thereof. If, without more, the wool when brought to the station at Hay Springs had been weighed and prepared for shipment, notwithstanding Silberman Bros. had placed upon it letters identifying it as their property, and it had been placed in cars for shipment, such acts, in and of themselves, would not have been sufficient to pass the title to the vendee without payment of the...