Aultman, Miller & Co. v. Mallory

5 Neb. 178

• Court: Nebraska Supreme Court
• Decided: July 15, 1876
• Status: Published

Opinion

Maxwell, J.

A sale and delivery of goods, on condition that the property is not to vest until the purchase money is paid or secured, does not pass the title to the vendee until the condition is performed; and a vendor, in case the condition is not fulfilled, has a right to repossess himself of the goods, both against the vendee and against his creditors. Story on Sales, Sec. 313. Hussey v. Thornton, 4 Mass., 405. Marston v. Baldwin, 17 Mass., 606. Barrett v. Pritchard, 2 Pick., 512. Hill v. Freeman, 3 Cush., 257. Gambling v. Read, 1 Meigs, 281. Bigelow v. Huntley, 8 Vt., 151. Smith v. Foster, 18 Vt., 182. Brewster v. Baker, 20 Barb., 364. George v. Stubbs, 26 Maine, 243. Sewall v. Henry, 9 Ala., 24.

No one can sell a greater interest in property than he possesses, unless the real owner so far encourages and sanctions the sale as to be estopped from asserting title to the property sold. Where goods are delivered to the vendee, the intention of the parties determines the interpretation to be given to the delivery. If the vendor, or his authorized agent, delivers goods unconditionally, he cannot afterward assert a claim of title thereto; or if, having delivered the property to the vendee conditionally, he afterward in any manner waives his right to the title of the property sold, he cannot afterward maintain an action of replevin to recover possession thereof. But the question of waiver, when put in issue, is a question of fact that should be submitted to the jury. See Estabrook v. Omaha Hotel Co., ante, p. 76.

In this case, the court instructed the jury to return a verdict for the defendant; in this there was error. The judgment of the district courtis, therefore, reversed, and the cause remanded for a new trial.

Reversed and remanded.