Hubenthal v. Creighton

— The purpose of this action was to recover for nursery stock. The complaint alleged a sale and delivery. The answer was a general denial. Upon the trial, the plaintiff’s evidence showed that the contract was not one of sale, but that the nursery stock had been delivered upon consignment, and when sold, the proceeds to be remitted to the plaintiff, less a commission of 25 per cent. At the close of the plaintiff’s case, the defendants moved for a dismissal on the ground that there was a failure of proof. Thereupon, the plaintiff asked, and was permitted, over the objection and exception of the…