ERROR
from the district court for Boone county. Tried below before
THOMPSON, J. Affirmed.
AFFIRMED.
Spear & Mack, R. F. Williams, J. S. Armstrong and C. J. Garlow, for
plaintiff in error.
J. A
Price and H. C. Vail, contra.
ALBERT
C. DUFFIE and AMES, CC. concur.
OPINION
ALBERT, C.
In
November, 1897, Gunder O. Qualset and Millie A. Brink, the
latter representing a concern known as the Brink Drug
Company, entered into a contract in writing which is as
follows:
"This
agreement, made and entered into by and between Gunder O
Qualset of Newman Grove, Madison county, Nebraska, party of
the first part and Millie A. Brink of Fremont, Dodge county,
Nebraska, party of the second part, witnesseth: The said
first party agrees to sell his stock of drugs and toilet
articles, and the fixtures in his drug store at St. Edwards,
Boone county, Nebraska, to the said second party, and the
said second party agrees to buy said drug stock and fixtures
on the terms and conditions following, to-wit: The invoice
price of said stock is $ 1,417.50 on November 10, 1897, and
the said second party agrees to pay for said goods in
payments as follows: Four hundred seventeen and 50-100
dollars cash in hand; one thousand dollars, ($ 1,000.00) in
payments as follows: Fifty ($ 50.00) dollars on the first day
of each month for twenty (20) months,
commencing on the first day of January, 1898. Each of said
payments shall draw interest at the rate of 10%
and the interest shall be paid on each payment when the
monthly payment is made. Said second party shall have the
right to make payments at any time on or before said payments
are due. But if payments are made in advance of the time
specified, they shall apply on the reduction of the
indebtedness, but shall not be deemed as allowing the next
monthly payments to pass. It is expressly agreed and
understood that the title to, and in said stock of drugs and
fixtures shall be and remain in the said first party until
the said second party shall have fully paid each and every
payment to the said first party. Said second party shall have
the right to sell from said stock in the usual course of
business, and hereby agree to keep said stock replenished, so
that the value of the said stock shall at all times be as
much as the invoice price of said stock at the date of this
agreement, viz: $ 1,417.50. The said second party agrees to
keep said stock insured in a sum not less than $ 500, loss if
any, payable to the said first party. It is further agreed
that the said first party shall at all times during the
continuance of this agreement, have the right to examine said
stock of goods, and fixtures, and if he finds that said stock
of goods and fixtures are being reduced in value, or being
allowed to depreciate by reason of bad management, or
neglect, he shall have the right to take immediate possession
of said stock and fixtures, and declare this agreement at an
end, in the following manner: He shall advertise said stock
for sale for at least 20 days, he shall give the said second
party at least 20 days notice in writing of said sale, and
said sale may be either public or private as said first party
may elect. Said first party shall retain from the proceeds of
said sale of goods and fixtures so much as is due him from
said second party on this contract, the costs of advertising
and sale and a further sum of $ 200 as damages for the
non-fulfillment of the agreement; the balance of the proceeds
from said sale shall be paid to said second
party. The said second party agrees to pay all taxes, rents,
licenses and expenses in running said business, and the
profits from said business, over and above the payments to be
made the said first party, shall be said second parties full
compensation for any and all services in the managing and
running of said business. In case the said second party shall
fail, neglect, or refuse to fulfill each and every part of
this agreement, the said first party may, at his election
take immediate possession of said stock and fixtures and sell
them in the manner as heretofore provided. As soon as the
said second party shall have fulfilled each and every
provision of this agreement, and made all payments as agreed,
the said first party shall make and deliver to the said
second party a bill of sale of said stock and fixtures, free
from all encumbrances, and liens that are against said stock
up to this date.
"Signed
in duplicate this day of November, 1897.
"In
presence of:
"C.
A. RANDALL, GUNDER O. QUALSET,
"EARL
C. BRINK. MILLIE A. BRINK."
The
drug company went into possession, in pursuance of the terms
of said agreement, and conducted the business, to all outward
appearance, as owners of the stock. The agreement was not
filed for record until the 2d day of December, 1898. On the
first day of December, 1898, Qualset assigned his interest in
the contract, and all his rights thereunder, to David A.
Lewis, the plaintiff below. On the 2d day of January, 1899,
the plaintiff took possession of the stock, claiming under
the contract. On the 11th day of January, thereafter,
judgments were rendered, some against the individual members
of the drug company, others against it by name, on which
executions were issued, placed in the hands of a constable,
the defendant below, for service and levied on the stock of
goods in question, then in the possession of the plaintiff in
this case. The plaintiff brought replevin, alleging general
ownership. A trial resulted in a verdict for the plaintiff.
From a judgment rendered thereon, the defendant
prosecutes error to this court.
The
defendant insists that the instrument in question is a
chattel mortgage, and that, as ...
