Sylvester v. Carpenter Paper Company

• Decision Date: 23 June 1898
• Docket Number: 8146
• Citation: 75 N.W. 1092,55 Neb. 621
• Parties: ISAAC SYLVESTER v. CARPENTER PAPER COMPANY ET AL
• Court: Nebraska Supreme Court

75 N.W. 1092

55 Neb. 621

ISAAC SYLVESTER v. CARPENTER PAPER COMPANY ET AL

No. 8146

Supreme Court of Nebraska

June 23, 1898

ERROR from the district court of Douglas county. Tried below before BLAIR, J. Affirmed.

AFFIRMED.

Brome Burnett & Jones, for plaintiff in error.

Byron G. Burbank, L. D. Holmes, and E. C. Page, contra.

OPINION

RAGAN C.

In January, 1892, Isaac Sylvester, of Omaha, Nebraska, owned a printing outfit on which Marder, Luse & Co., of Chicago, held a chattel mortgage to secure a debt owing to them by Sylvester. At said time there existed in Omaha a corporation known as the Carpenter Paper Company. January 16, in said year, Sylvester, the Carpenter Paper Company, and Marder Luse & Co. signed an agreement in writing, in words and figures as follows: "This memorandum of mutual agreement, made between Isaac Sylvester, of Omaha, Douglas county, Nebraska, and Marder, Luse & Co., an incorporation, of Chicago, Cook county, Illinois, parties of the first part, and the Carpenter Paper Company, an incorporation of Omaha, Douglas county, Nebraska, party of the second part, witnesseth: The said parties of the first part, for and in consideration of one dollar, in hand paid, and the covenants and agreements of the second party, hereafter mentioned, hereby agree to lease to the said party of the second part all of the printing machinery, and material, engine, shafting, belting, office furniture, and fixtures, now in the office of the said Isaac Sylvester, and on a part of which Marder, Luse & Co. have a chattel mortgage, for the term of twenty-seven months from and after the time when said machinery shall be set up and in running order on the fourth floor of No. 1118 Howard street, Omaha. The said party of the second part hereby agrees to pay to Marder, Luse & Co. at Omaha, Nebraska, the sum of $ 25 per month for the use of said machinery and material, first payment to be made when machinery is set up as above provided, and monthly thereafter. They also agree to furnish, without charge, teams, wagons, and drivers for the removal of the above described property." January 22, 1892, Sylvester and the Carpenter Paper Company entered into an agreement in writing as follows: "The said Isaac Sylvester, for and in consideration of one dollar ($ 1) in hand paid, and the covenants and agreements of the Carpenter Paper Company hereinafter mentioned, hereby agrees to enter the employment of said party of the second part, and work under its direction, in connection with a printing and ruling department which they propose to add to their business, and to give the same his undivided and faithful attention during the term of twenty-seven months, if so desired by the said party of the second part. The said Carpenter Paper Company agrees to pay the said Isaac Sylvester for said services during such term as his work shall be satisfactory the sum of one hundred dollars ($ 100) per month, forty dollars of the same being paid direct to himself, ten dollars to be applied to his indebtedness to the said party of the second part until settled, and the remainder of fifty dollars per month to be paid to Marder, Luse & Co. until their past due claim is settled, and party of the second part hereby reserves the right to cancel this agreement at any time when the services of the first party are not satisfactory. It is mutually agreed that the above is to take effect as soon as the printing office of the said party of the first part is transferred to the fourth floor of 1118 Howard street, of this city, and is set up ready for business." About February 1, 1892, the printing material leased to the Carpenter Paper Company was, by virtue of the writing bearing date January 16, 1892, transferred to its possession, and so remained until taken from them by the writ of replevin issued in this action. About the time the Carpenter Paper Company came into possession of the printing material under its lease Sylvester began work for it and so continued for a few months, when he was discharged or quit. March 5, 1894, Sylvester brought this action in replevin against the Carpenter Paper Company and Marder, Luse & Co. to recover the printing outfit delivered to the Carpenter Paper Company in pursuance of the contract of January 16, 1892. The action was brought, however, within less than twenty-seven months after January 16, 1892. The jury, in obedience to an instruction of the district court, returned a verdict in favor of the parties made defendants, upon which a judgment was entered against Sylvester, to review which he has filed here a petition in error.

1. The evidence shows without conflict that about February 1, 1892, the Carpenter Paper Company, in pursuance of the writing of January 16, 1892, took possession of the printing outfit and remained in possession thereof until this suit was brought, during all of which time it made the monthly payments promised to Marder, Luse & Co. There is no evidence in the record that at the time this suit was brought the debt of Sylvester to Marder, Luse & Co. had been discharged; nor is there any evidence in the record which shows, or tends to show, that Sylvester, at the time this suit was brought, was entitled to the possession of the property in controversy here if the writings of January 16 and 22 constitute the contracts between the parties.

2. On the trial of the case Sylvester offered to prove that in the early part of January, 1892, and prior to the making of these writings, the paper company proposed to him to employ him together with his printing outfit, for twenty-seven months at $ 125 per month, which proposition he accepted; that as a matter of fact there never existed two contracts between himself and the paper company--one contract with reference to leasing the...