Spies v. Stein

• Decision Date: 16 December 1903
• Docket Number: 13,188
• Parties: CHARLES SPIES ET AL. v. PAUL F. STEIN
• Court: Nebraska Supreme Court

97 N.W. 752

70 Neb. 641

CHARLES SPIES ET AL. v. PAUL F. STEIN

No. 13, 188

Supreme Court of Nebraska

December 16, 1903

ERROR to the district court for Douglas county: WILLARD W SLABAUGH, JUDGE. Reversed.

REVERSED.

Stillman & Price, for plaintiff in error.

W. A Foster, contra.

KIRKPATRICK C. DUFFIE, C., concur.

OPINION

KIRKPATRICK, C.

Plaintiffs in error, a copartnership (hereinafter plaintiff), instituted a replevin action in the district court for Douglas county against Paul F. Stein, a constable (hereinafter defendant), to recover possession of certain property consisting of cans of coffee held by defendant under and by virtue of a writ of attachment. The petition contained the usual averments of ownership in plaintiff and the wrongful detention by defendant. The answer filed by defendant was a general denial. There was a trial to a jury, resulting in a verdict and judgment for defendant for $ 104.07, the value of the goods taken by plaintiff under its writ and retained by it, with interest and costs. The case is presented to this court by plaintiff, who alleges error in the proceedings in the lower court: First, in the admission of incompetent evidence; second, in the giving of oral instructions to the jury; third, in the submission of the case to the jury, the evidence being insufficient to sustain a verdict and judgment for defendant.

By the record, it is shown that one J. W. Johnson, some time prior to the commencement of this action, opened up offices in the Bee building in the city of Omaha, representing himself as the general agent of the C. F. Blanke Tea & Coffee Company of St. Louis, Missouri. He had in his possession the cans of coffee which are the property involved in this action. He engaged actively in the advertisement of his goods and in his business of securing orders for coffee; and, in the course of his business conduct, contracted many obligations in the name of the C. F. Blanke Tea & Coffee Company, as a result of which an attachment was sued out by the Rees Printing Company of Omaha and, under this writ, the defendant seized the goods in controversy and removed them to a warehouse for storage. Another writ by another creditor was also levied upon the same goods. These attachments were subsequently released upon the filing of bonds by the C. F. Blanke Tea & Coffee Company. By the testimony in this record, an explanation of the release of these attachments upon bonds given in the name of the Blanke company is given. That explanation is that the Blanke company disavowed all connection with, or responsibility for, or knowledge of the acts of Johnson, and disclaimed any interest in or title to the goods levied upon; but that those goods had been purchased of the Blanke company by Charles Spies & Company, plaintiff, and had been at the time of the levy of the attachments, and prior thereto, in possession of Johnson as sample goods, to be used by him for the purpose of soliciting orders for plaintiff. When the goods were levied upon for claims against the Blanke company, that company authorized Charles Spies & Company to appear in the cases, using their own discretion as to whether to defend in the name of the Blanke company or otherwise. At all events, it seems that after the release of the attachments, the goods were at the disposal of Charles Spies & Company, remaining in the warehouse, where they had been taken by the constable.

It is shown by the evidence that Charles Spies & Company, plaintiff, is a copartnership, located at Kansas City, Missouri, and engaged in the wholesale trade in tea and coffee. They have a contract with the Blanke company, by which the latter is to sell tea and coffee to plaintiff at a certain price, and by which the Blanke company is not to sell any of its teas or coffees in a limited territory, including Nebraska. Pursuant to this arrangement, plaintiff sent Johnson to Omaha to solicit orders for tea and coffee, his compensation to be a commission payable on the basis of accepted orders.

After the release of the two attachments in the manner heretofore indicated, the goods being in the warehouse subject, as plaintiff contends, to its disposal, defendant again seized the goods under a writ of attachment sued out by the Orchard & Wilhelm Carpet Company of Omaha, on a claim against the C. F. Blanke Tea & Coffee Company. To recover the goods held under this last attachment, plaintiff instituted this action.

It is elementary that, in replevin actions, the burden of showing that the right of possession at the commencement of the action was in the plaintiff is on the plaintiff. Moore & Cozine v. Herron, 17 Neb. 697, 24 N.W. 425. The jury were properly instructed that the sole question for them to pass upon was whether or not at the commencement of the action the plaintiff was the owner and entitled to the possession of the property. Unless modified by testimony hereinafter considered, admitted over objections of plaintiff, the proof is very clear that the property in controversy belonged to plaintiff, who originally purchased it from the Blanke company, who, however, never owned it after it was placed in the possession of Johnson. The property was placed in the possession of Johnson to be used by him as samples in his work of soliciting orders for coffee sold by plaintiff. If this testimony is uncontradicted by competent testimony, it would follow that the judgment should have gone for plaintiff.

We now come to a consideration of that part of the testimony in the record upon which it is sought to sustain the judgment for defendant. It relates wholly to acts and declarations of Johnson, showing that he represented himself as the general agent of the C. F. Blanke Tea & Coffee...