Combination Gas-Machine Co. v. King

Harrison, C. J. It appears that during the year 1887, Lusk Brothers erected a building on a lot in Friend, Nebraska, and purchased of the plaintiff company a “combination gas machine,” and it was placed in said building. The transfer to the Lusk Brothers was what is denominated a “conditional sale.” After the completion of the building certain liens on the property were foreclosed by action, and [180] in a resultant sale the premises were purchased by one E. I. Ferguson, by whom they were sold and conveyed to the defendant in the suit. Lusk Brothers failed to perform the condition,of the sale of the machine to them, or never paid the company for the same, and for the company there was a demand made on Horace P. King, the defendant herein, that he pay for the machine or allow the company to take possession thereof, and on his refusal of either and both branches of the demand this suit was commenced for the company to recover the value of said machine. The result of the trial of the issues was a judgment for the defendant, of which the plaintiff seeks a reversal in an error proceeding to this court. The trial was to the court without a jury and the assignments of error are in substance contained in the two: “That the finding of the court was contrary to law,” and “that the finding of the court was contrary to the evidence.” It was of the admitted fadts that there was not filed in the office of the clerk of the proper county a copy of the contract by which the conditional sale of the gas machine was evidenced, as is provided in section 26 of chapter 32, Compiled Statutes; but the contention for the plaintiff is that the defendant, when he purchased the property, had actual notice of the condition of the sale of the gas machine to Lusk Brothers, and that the same was unperformed and unfulfilled, and he could not hold it against the company, and his appropriation of it was a conversion. It may be said that it has been decided that actual notice is as effectual to bind a purchaser and give the condition of a sale force against him, as is the filing of the contract in the manner and place prescribed by the statute (see Peterson v. Tufts, 34 Neb. 8); but the consideration of the question and its decision herein is unnecessary, for, if it be conceded that actual notice would have been in this instance sufficient, then the settlement of the litigation must hinge entirely upon the point of what was shown by the evidence in regard to the actual notice of defendant of the condition. The evidence [181] on this subject was conflicting, and a finding that he was without notice had ample support, and must be left undisturbed. The judgment of the district court was without error and is Affirmed.