Schuster v. Carson

• Decision Date: 28 January 1890
• Citation: 44 N.W. 734,28 Neb. 612
• Parties: SCHUSTER ET AL. v. CARSON.
• Court: Nebraska Supreme Court

28 Neb. 612

44 N.W. 734

SCHUSTER ET AL.

v.CARSON.

Supreme Court of Nebraska.

Jan. 28, 1890.

Syllabus by the Court.

1. Where goods are sold on time, the vendor cannot claim the right to stop the goods in transit without showing that the vendee is insolvent, and that the goods have not come into his actual or constructive possession.

2. The attachment of such goods, while in the possession of the carrier, by a general creditor of the vendee, does not destroy the right of stoppage in transitu.

3. When there is no answer in the record brought to this court, but it appears that the cause was tried by both parties, without objection, as though an answer had been filed denying the allegations of the petition, this court will treat the case in the same way.

Error from district court, Fillmore county; MORRIS, Judge.Maule & Sloan, for plaintiffs in error.

F. B. Donisthorpe, for defendant in error.

NORVAL, J.

This is an action in replevin. The case was submitted to the court upon the following statement of facts: “Schuster, Hingston & Co. vs. Washington I. Carson It is hereby agreed and stipulated by and between the parties to the above-entitled cause that the same shall be submitted on the following statement of facts: That the plaintiffs are a copartnership doing business at St. Joseph, Missouri. That on the 21st day of September, 1888, they sold to one A. Sands the goods and property which are the subject of this action for the sum of $685.50, to be paid for in four months from that date; no part of which sum has ever been paid to plaintiffs. That on the 21st day of September, 1888, the plaintiffs delivered said goods to the Chicago, Burlington & Quincy Railroad at St. Joseph, Mo., as a common carrier, to convey said goods to the station at Geneva, Fillmore county, Nebraska, as further evidenced by the original bill of lading issued by the agent of such common carrier, and attached hereto, and made a part hereof. That in pursuance of said bill of lading, and agreement contained therein, the said C., B. & Q. Railroad conveyed said goods to Geneva station. That on the 1st day of October, 1888, the defendant herein, as sheriff of Fillmore county, Nebraska, by virtue of an order of attachment issued by J. D. HAMILTON, a justice of the peace in and for Fill more county, in a suit wherein one Silas B. Camp was plaintiff, and said consignee, A. Sands, was defendant, did levy upon and take possession of said goods while the same were in the possession of the said C., B. & Q. Railroad, in their freight-house at Geneva, Nebraska, and before the same had been delivered by the said railroad to the consignee. That if the court shall find for the plaintiff, from the above agreed statement of facts, that the right of property or right of possession was in the plaintiff, he shall assess the damages at the sum of twenty-five cents. That, if the court shall find that the right of possession was in the defendant, then he shall find the value of that possession at $250, except it shall be found that the defendant had a lien on said property for freight paid; then the vaue of said possession shall be found at $3.22, and damages in the sum of twenty-five cents.” The court found for the defendant. The plaintiffs filed a ...