Shakman v. Potter

• Decision Date: 13 April 1896
• Citation: 98 Iowa 61,66 N.W. 1045
• Parties: SHAKMAN v. POTTER ET AL.
• Court: Iowa Supreme Court

98 Iowa 61

66 N.W. 1045

SHAKMAN

v.POTTER ET AL.

Supreme Court of Iowa.

April 13, 1896.

Appeal from district court, Howard county; E. E. Cooley, Judge.

Action of replevin to recover the possession of certain merchandise which it is claimed the plaintiff consigned to defendant Potter, to be sold on commission. Trial to a jury. Verdict and judgment for defendant Hoffman, and plaintiff appeals. Reversed.John McCook, for appellant.

H. T. Reed, for appellees.

DEEMER, J.

The plaintiff claims that it consigned certain clothing to the defendant Potter, to be by him sold on commission; that defendants Hoffman and Hall hold possession of the same through a conspiracy or agreement between them and Potter, and that they, in fact, have no title thereto; that Hoffman holds a bill of sale from Potter for the goods; and that Hall has possession as agent of Hoffman, but that Potter had no right or title thereto which he could convey. Plaintiff alleges the value of the goods to be $228. Defendant Potter denies that he held the goods on commission; says that he made a bill of sale thereof to his co-defendant Hoffman, and that at the time he made it he was the absolute owner of the goods, and had the right to sell the same, and that he has no further interest therein. Defendant Hall disclaimed any interest in the goods. He further alleged that he was in the possession thereof as the agent of Hoffman. Hoffman denied the plaintiff's claim, and further averred that she was in the possession of the goods under a bill of sale from Potter; that she paid a valuable consideration therefor, and had no notice of the plaintiff's claim; that the property was and is worth the sum of $300; and that she was damaged by reason of the wrongful taking thereof by plaintiff in the sum of $50, and in loss of profits in the sum of $100. The plaintiff's reply was practically a general denial. Such were the issues on which the case was tried, with the result above stated.

1. The testimony of one L. A. Shakman, a member of the plaintiff firm, was taken by deposition. In this deposition he identified the correspondence which passed between plaintiff and the defendant Potter, testified to the shipment of goods ordered by Potter, and identified the goods taken on the writ of replevin as being a part of those shipped to Potter. He also testified to the value of the property delivered, and to the value of that part of it which was secured under the writ issued in the case. Many objections were interposed to the testimony of this witness, which were largely sustained; and some of the exhibits attached to his deposition were rejected, when they were offered, on the ground that they were not the best evidence. These rulings are complained of. It is no doubt true that the court was in error in excluding some of these exhibits; but the record discloses that defendants' counsel, after the reading of the deposition had been concluded, withdrew all objections to the exhibits attached to the deposition. If these exhibits had not already been read to the jury, it then became the duty of plaintiff's counsel to read them, if he wished the benefit thereof. As he failed to do this, he cannot now complain.

2. These exhibits show that all the negotiations between plaintiff and Potter were by correspondence. From this correspondence it appears that Potter ordered a certain bill of goods from plaintiff; that plaintiff refused to ship the goods without some assurance of Potter's financial responsibility; that it made inquiries from a commercial agency, and from merchants who had sold Potter goods, and finally shipped him the merchandise ordered, and sent him an invoice, which contained the following: “Milwaukee, Dec. 15, 1893. Mr. E. E. Potter, Cresco, Io. Bought of L. A. Shakman & Co., Wholesale Clothiers, 343-345 Broadway. On memorandum. Terms: 7/10--5/30--4/60. Shipped by express. All bills not paid at maturity are subject to sight draft and interest. Accounts due on demand, when purchaser suspends payment, receiver is closing out, or suit commenced.” (Then follows a list of the goods.) The question in the case turned largely upon the meaning which should be given the trade terms, “on memorandum,” appearing upon the invoice. Testimony was admitted by the court which tended to...