DocketNumber: No. 6410
Citation Numbers: 45 Neb. 604
Judges: Ragan
Filed Date: 6/21/1895
Status: Precedential
Modified Date: 7/20/2022
In this case the finding of the jury enables us to say that the following facts are established: On and prior to the first of November, 1890, H. H. Matteson was engaged in the mercantile business in the town of Shelton, this state. On or about that time he ordered certain rubber goods from W. Y. Morse & Co., of Omaha, Nebraska. These goods were not shipped to him when ordered. About the 16th of November Matteson went to the state of Iowa on business, leaving his wife and a clerk named Lilly in charge of the store. Before Matteson left he instructed them if the rubber goods previously ordered from Morse & Co. should arrive not to accept them, as Morse & Co. had delayed their shipment too long. On the 20th or 21st of November, and while Matteson was absent, the rubber goods arrived, and the clerk Lilly, without the knowledge of Mrs. Matteson, paid the freight on them and stored them not unpacked in a warehouse in which Matteson was accustomed to keep flour, provisions, hardware, etc. Matteson returned on the 22d or 23d of November and sold his entire stock of merchandise to S. H. Graves and George Mortimer. The consideration for this sale was a debt of $2,500, which Matteson owed a bank in Shelton, $1,500 which he owed J. B. Farwell & Co., and which debt was assumed by Matteson’s vendees, and a half section of real estate lying near said town of Shelton. At the time this sale was made possession of the stock of merchandise was given to Graves and Mortimer. At the time of the sale no invoice of the property was made, and Matteson did not know that the rubber goods ordered of Morse & Co. had arrived. In a day or two after said sale Morse & Co. replevied from Graves & Mortimer the rubber goods mentioned above, still remaining in boxes unpacked in said warehouse, Morse & Co. claiming to be the owners of said goods. There was a trial to a jury,
1. The first assignment of error is that the district court erred in permitting Morse & Co. to prove on the trial the value of the stock of merchandise at the time it was sold by Matteson to Graves & Mortimer. On the trial H. H. Matteson was examined as a witness in behalf of Morse & Co., and was asked by their counsel this question : “ What was the value of the stock at the time of the transfer?” To this question counsel for Graves & Mortimer objected, as incompetent, immaterial, and irrelevant. The court overruled the objection and they excepted, and the witness answered: “About $13,000.” We think this evidence was incompetent, immaterial, and irrelevant under the issues, but we do not think that Graves & Mortimer were prejudiced by its admission.
2. The remaining assignment of error is that the court erred in giving to the jury the following instruction : “4. The real question for you to determine is whether or not the witness Matteson had received and accepted the goods in question after they were shipped by the plaintiff. If he did receive and accept the goods, then the title would pass from the plaintiff to Matteson and he could pass a good title to the defendant; but if the witness Matteson did not receive and accept the goods from the plaintiff he has no title to the goods, and none could pass to the defendant, and the plaintiff could maintain replevin therefor. If the witness Lilly received the goods on behalf of the witness Matteson, but without authority from the said Matteson, or against his express directions, then this would not be an acceptance of the goods, and no title would pass unless the said Matteson afterwards ratified or consented to the action in that respect of the witness Lilly. If you find from the evidence that the witness Lilly was authorized by the witness Matteson to receive and accept the goods for him, and
Affirmed.