Prokop v. Gourlay

• Decision Date: 01 July 1902
• Citation: 65 Neb. 504,91 N.W. 290
• Parties: PROKOP ET AL. v. GOURLAY.
• Court: Nebraska Supreme Court

65 Neb. 504

91 N.W. 290

PROKOP ET AL.

v.GOURLAY.

Supreme Court of Nebraska.

July 1, 1902.

Syllabus by the Court.

1. Where the owner of personal property delivers it to another for sale on commission, and no time is fixed within which such sale is to be made, the law will imply a reasonable time.

2. In such case, where the owner seeks to recover possession of the property from his bailee, a petition which does not allege that a reasonable time has expired for making such sale is fatally defective.

3. In the absence of such allegation, instructions submitting the question of conversion to the jury are erroneous.

Commissioners' opinion. Department No. 3. Error to district court, Saline county; Letton, Judge.

Action by William A. Gourlay against Adolph L. Prokop and others. Judgment for plaintiff. Defendants bring error. Reversed.Hastings & Hastings, for plaintiffs in error.

F. I. Foss, B. V. Kohout, and R. D. Brown, for defendant in error.

ALBERT, C.

William A. Gourlay filed his petition in the district court against Adolph Prokop and Joseph Jiskra, which, omitting the formal parts, is as follows: “(1) The plaintiff complains of the defendants for that on or about the 16th day of May, 1898, the defendant Adolph Prokop kept a store and warehouse at Wilber, Saline county, Nebraska; that soon after May 16, 1898, Joseph Jiskra became a partner with the said Adolph Prokop; that they kept in their store and warehouse a stock of furniture; that the plaintiff is engaged in and is a dealer in musical instruments; that the defendants desired to sell musical instruments on commission for the plaintiff, and desired to have a musical instrument sent to them, that they might keep the same on exhibition and for the purpose of sale, and in consideration of the said plaintiff sending the said musical instrument to the said defendants, that they might have it for the purpose of sale, the defendants agreed to stowe and safely keep in said store the following goods, which the plaintiff sent to them under the foregoing arrangement, to wit: 1 Crown organ, 1 organ stool; 1 organ instruction book,--of the value of $68, which was property of the plaintiff; and the defendants, as storekeepers and warehousemen, received said goods, and agreed to keep the same safely. (2) At the time the said goods were delivered to the defendants, the plaintiff informed them that it was necessary for their preservation that they should be safely kept and insured. (3) The defendants, while said goods were in said store and warehouse, neglected and did not insure the same, but permitted said goods to be burned and destroyed on or about the 1st day of May, 1899, whereby said goods were injured and wholly lost to the plaintiff, to the damage of the plaintiff in the sum of $68. (4) The plaintiff says that on or about March 10, 1899, he made a demand for said organ, stool, and instruction book of the defendants, and desired the said organ, stool, and instruction book be returned from said defendants to the plaintiff, but said defendants refused to deliver the above-named articles to the plaintiff, and the defendants have never paid for the same, though often...