Richardson Drug Company v. Teasdall

• Decision Date: 18 November 1897
• Docket Number: 7595
• Citation: 72 N.W. 1028,52 Neb. 698
• Parties: RICHARDSON DRUG COMPANY ET AL. v. ALICE M. TEASDALL ET AL
• Court: Nebraska Supreme Court

72 N.W. 1028

52 Neb. 698

RICHARDSON DRUG COMPANY ET AL. v. ALICE M. TEASDALL ET AL

No. 7595

Supreme Court of Nebraska

November 18, 1897

ERROR from the district court of Lancaster county. Tried below before HALL, J. Reversed.

REVERSED AND REMANDED.

Stevens & Cochran and John P. Maule, for plaintiffs in error.

Charles O. Whedon, contra.

OPINION

RAGAN, C.

On January 27, 1892, the Richardson Drug Company and the Lincoln Paint & Color Company, hereinafter called the Drug Company owned a stock of drugs, together with a lot of drug-store fixtures, including a soda fountain, then situate in a building in the city of Lincoln, and on said date, in consideration of $ 2,000 sold and delivered possession of said stock of goods to Alice M. and Thomas L. Teasdall hereinafter called the Teasdalls. The contract of sale between said parties was evidenced by a writing of that date which, so far as material here, was in words and figures as follows:

"That said parties of the second part [the Teasdalls] are to forthwith become the agents of the parties of the first part [the Drug Company] and as such shall at once take possession of all the stock of drugs, chemicals, paints, oils, merchandise, and all fixtures belonging to said stock at number 1843 O street, Lincoln, Nebraska, and shall, as such agents, sell such goods at retail in the ordinary course of business, and pay to the parties of the first part the sum of one hundred dollars in cash for each month for the first two months, and the sum of $ 150 per month thereafter until said parties of the second part shall have paid to the said parties of the first part the total sum of two thousand ($ 2,000) dollars net, the monthly payments to be commenced promptly on March 15, 1892, and to be made on the 15th day of each and every month thereafter until the whole sum shall have been paid. And said parties of the second part shall receive no compensation for their services as such agents save the net profits of said business over, and in excess of, the said amounts to be paid to said parties of the first part. And said parties of the first part agree and guaranty that all said profits shall be made, and all payments agreed made, without in any degree depleting said stock of goods. Said $ 2,000 shall be applied as follows: Sixteen hundred dollars ($ 1,600) to the Richardson Drug Company and four hundred ($ 400) dollars to the Lincoln Paint & Color Company, and said monthly payments shall be made to the Richardson Drug Company and by them divided as follows: 80 per cent to be retained by the said Richardson Drug Company and 20 per cent to be turned over as paid to the Lincoln Paint & Color Company; and when the said two thousand ($ 2,000) dollars shall be paid, said parties of the first part shall transfer to said parties of the second part all their right, title, and interest in the said stock of drugs and fixtures; but until said sum of two thousand ($ 2,000) dollars shall have been fully paid the title to all said property shall be and remain in said parties of the first part. When said amount of two thousand ($ 2,000) dollars shall have been fully paid said parties of the first part shall release and deliver to the said parties of the second part all claims and evidences of indebtedness which they now hold against them."

The Teasdalls took possession of the property mentioned in this contract and made the monthly payments provided therefor for some months. During the time the Teasdalls were in possession they purchased a large quantity of druggist's goods and added them to the stock. They then failed to make a payment due under the contract and the Drug Company replevied the entire stock of goods and fixtures, including the goods purchased and put into the stock by the Teasdalls after their taking possession under the contract. On the trial the district court directed a verdict for the defendants, upon which judgment was entered, to review which the Drug Company prosecutes here a petition in error.

1. The contract recited above evidenced a conditional sale of the property therein mentioned from the Drug Company to the Teasdalls. It vested the Teasdalls with the possession of the property embraced in said contract and reserved the title to said property in the Drug Company until the full payment of the purchase price of $ 2,000.

2. The first question presented is whether the default of the Teasdalls to make the monthly payments for the property purchased of itself conferred upon the Drug Company the right of possession of the property conditionally sold, the contract not specifying that in case such default occurred the Drug Company should be entitled to the possession of the property? The authorities constrain us to answer that it did though the precise question does not appear to have been determined by this court. In Aultman v. Mallory, 5 Neb. 178, it was ruled: "A sale and delivery of goods, on condition that the property is not to vest until the purchase money is paid or secured, does not pass the title to the vendee until the condition is performed; and a vendor, in case the condition is not fulfilled, has a right to repossess himself of the goods." The property involved in that case was a mowing machine, and the contract provided that the title should remain in Aultman, Miller & Co. until the purchase price was paid. The contract is not set out in the opinion, and we do not know whether it provided that, in case the purchaser of the machine made default in payment for the same, Aultman, Miller & Co. might retake possession thereof; nor does it appear whether the precise question under consideration here was presented. The Aultman case was followed in McCormick v. Stevenson, 13 Neb. 70, 12 N.W. 828. But the contract in that case expressly provided that the McCormick Company might take possession of the property sold if the vendee thereof made default in his...