Tilton-Phelps Furniture Company v. Wiant

• Decision Date: 26 March 1912
• Docket Number: 16,601
• Citation: 135 N.W. 428,91 Neb. 137
• Parties: TILTON-PHELPS FURNITURE COMPANY, APPELLEE, v. VERNE J. WIANT ET AL., APPELLANTS
• Court: Nebraska Supreme Court

135 N.W. 428

91 Neb. 137

TILTON-PHELPS FURNITURE COMPANY, APPELLEE, v. VERNE J. WIANT ET AL., APPELLANTS

No. 16,601

Supreme Court of Nebraska

March 26, 1912

APPEAL from the district court for Franklin county: HARRY S. DUNGAN JUDGE. Affirmed.

AFFIRMED.

H. W Short, for appellants.

W. C Dorsey, contra.

OPINION

HAMER, J.

This is an appeal from the judgment of the district court for Franklin county by Fred G. Hutchins.

The plaintiff, the Tilton-Phelps Furniture Company, filed its petition in the district court for Franklin county against Verne J. Wiant, L. H. McClung and Fred G. Hutchins. The petition alleged that they were copartners engaged in the business of selling furniture in the city of Franklin, Nebraska, under the firm name and style of V. J. Wiant & Company, and that on the 2d day of July, 1907, they purchased from the plaintiff goods, wares and merchandise of the reasonable market value of $ 78.27, which were delivered to them, and for which amount the plaintiff prayed judgment, with interest. Hutchins filed a separate answer consisting of a general denial. Wiant answered for himself. He set up a general denial, and also pleaded that he was a minor under the age of 21 years, and that the goods alleged to have been sold never came into his possession or control, and that he never received any money or profit by reason of the purchase and disposal of the goods, and he alleged his minority as a defense to plaintiff's cause of action. The defendant McClung filed no answer, and was defaulted. At the trial the jury rendered a verdict against the defendants McClung and Hutchins for $ 82.30. The verdict is silent as to the defendant Wiant. Hutchins filed a motion for a new trial. The motion was overruled, and he appealed to this court.

It is contended by Hutchins that the evidence fails to show that the plaintiff shipped and delivered the goods. The defendant Wiant testified that Hutchins telephoned him to go up to Franklin and buy the McClung stock of goods, and that he went up and bought the goods and paid $ 12 to bind the bargain that afterwards Hutchins called him up and told him that he wanted the furniture store at Franklin run in his name, the name of V. J. Wiant; that under that arrangement McClung was to run the store and deposit the funds taken in for the sale of goods at the Franklin State Bank, at Franklin, and that all bills were to be checked out of the said deposit; that...