Shaughnessy v. Lininger & Metcalf Co.

• Court: Nebraska Supreme Court
• Writing for the Court: MAXWELL
• Citation: Shaughnessy v. Lininger & Metcalf Co., 34 Neb. 747, 52 N.W. 717 (Neb. 1892)
• Decision Date: 11 June 1892
• Parties: SHAUGHNESSY, SHERIFF, v. LININGER & METCALF CO.

34 Neb. 747

52 N.W. 717

SHAUGHNESSY, SHERIFF,

v.LININGER & METCALF CO.

Supreme Court of Nebraska.

June 11, 1892.

Syllabus by the Court.

1. Contract set out in the opinion held to be one of agency, and not conditional sale, and that it was unnecessary to file the same for record to protect the principal.

2. That the agent had no interest in the property subject to levy and sale under an execution or attachment against him.

3. The proof fails to establish a different contract from that showing agency.

Error to district court, Johnson county; BROADY, Judge.

Replevin by John Shaughnessy, sheriff, against the Lininger & Metcalf Company. Verdict and judgment for defendant. Plaintiff brings error. Affirmed.Chamberlain Bros. & Rood, for plaintiff in error.

S. P. Davidson, for defendant in error.

MAXWELL, C. J.

This is an action of replevin, brought by the plaintiff in error to recover the possession of certain articles of merchandise levied upon by him as sheriff under an order of attachment issued in favor of the Iola Carriage & Omnibus Company against George E. Webb. On the trial of the cause the jury returned a verdict in favor of the defendants in error, upon which judgment was rendered. The property in question was furnished to Webb by the defendant in error under a contract of which the following is a copy:

“This agreement, made and entered into this 3d day of Oct. A. D. 1889, by and between Nininger & Metcalf Co., of Omaha, Neb., party of the first part, and G. E. Webb, of Tecumseh, county of Johnston, state of Neb., party of the second part, witnesseth: The party of the first part, for and in consideration of the convenants and agreements to be performed by the party of the second part hereinafter contained, has this day appointed the party of the second part agent for the sale of the goods hereinafter named, in the following territory: Tecumseh and vicinity, in the state of Neb., and no other; it being agreed that the party of the first part will not be responsible for any trespass committed upon said territory, unless said trespass be committed by their direction, for and during the season ending January 1st, 1891; and party of the second part, for and in consideration of the appointment to such agency, which is hereby accepted, and for the further consideration of the commissions herein named, agrees as follows, viz.:

(1) The party of the 2nd part agrees to canvass for purchasers early and thoroughly in the territory herein named, and make said goods widely known by posters, circulars, and furnish advertising, and press the sale of said goods, and maintain their reputation to the fullest extent of his or their ability, and to sell said goods on as short time as possible, in no case to exceed 9 months, and subject only to the manufacturer's regular warranty, and to deliver no goods to any customer before it is fully paid for by cash or note as herein required.

(2) The party of the 2nd part hereby guaranties the sale of all goods ordered for the season of 1889 and 90, the meaning and understanding of this guaranty being that, in case the said goods are not all sold during the continuance of this contract, then the party of the 2nd part shall keep all unsold goods insured for full value in the name and for the benefit of said party of the 1st part, and will properly store and carry them over free of insurance, taxes, storage, and freight, subject to the order of said party of the 1st part, and, if not ordered away, to settle for all unsold goods January 1st, 1891, in cash, if required by the party of the 1st part.

(3) The party of the 2nd part agrees to take all notes for all goods sold on time on the blanks furnished by said party of the first part, and payable to their order at some bank or express office, with interest at the rate of 10 per cent. per annum from date until paid, and to remit to said party of the 1st party all notes taken on sales, and their part of all cash received on sales, as fast as received.

(4) The party of the second part agrees that the makers of all notes which may be sent to the party of the first part in pursuance of this agreement shall at the time such notes are sent be parties of well-known...