Wagman v. Julius Kessler & Co.
| Decision Date | 17 January 1907 |
| Court | Nebraska Supreme Court |
| Parties | WAGMAN v. JULIUS KESSLER & CO. |
OPINION TEXT STARTS HERE
Syllabus by the Court.
The vendee commenced an action to recover partial payment made on a sale of personal property after the vendor had fully complied with all the conditions of the agreement on his part. While the action was pending the vendor sued out a writ of replevin, making the vendee and a railroad company which had possession of the goods, parties defendant, alleging that they were the absolute owners of the property. Held, that under these facts a rescission of the contract of sale was effected, and that the vendee was entitled to recover advanced payments made upon the sale.
Commissioners' Opinion. Department No. 2. Appeal from District Court, Douglas County; Kennedy, Judge.
Action by Joseph Wagman against Julius Kessler & Co. Judgment for defendants, and plaintiff appeals. Reversed and remanded.T. W. Blackburn, for appellant.
A. G. Ellick, for appellees.
Action for money had and received. The court directed a verdict for the defendants, and the plaintiff appealed.
The facts are these: October 31, 1903, plaintiff, who resides in Omaha, gave the defendants, in business in Chicago, a written order for five cases of whisky in bond, agreeing to pay therefor $33; $13 in cash, and $20 on January 1, 1904. The goods being in bond, the plaintiff was to pay the internal revenue, amounting, with exchange, to $15.45. November 12, 1903, plaintiff wrote defendants to ship the goods at once. Complying with this request, defendants shipped four cases November 14, 1903. The other case was omitted by oversight, but was shipped a few days later, and reached the freight house of the railroad company at Omaha November 21, 1903; the four cases having been received at the same place a few days earlier. A bill of lading, to which was attached a draft for the amount of the internal revenue, was sent to one of the banks in Omaha, and the plaintiff notified to pay the draft and take it up, which he did upon receipt of the notice. The bill of lading for the goods last shipped was sent directly to and received by the plaintiff. Plaintiff made inquiry at the different freight houses in Omaha for the goods after they had been received there, but was informed that they had not arrived. These inquiries were made about Christmas. Afterward, and on December 26, 1903, he brought this suit in justice court to recover his cash payment of $13 and the $15.45 which he had paid as internal revenue; his action being based upon the claim that the goods were to be delivered for the holiday trade.
The written order...
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