Brackett v. Edgerton

| Minn. | Jan 15, 1869

By the (Jowrt

Wilson, Ch. J.

The plaintiff and defendant, on the 20th day of April, 1865, entered into a written contract in these words :

“ St. Paul, April 14th, 1865.

“ George A. Brackett, of Minneapolis, Minn., bought of E. S. Edgerton, of St. Paul, five thousand and fifty bushels of No. 1 wheat, at the market value of such wheat this day in the city of Milwaukee, to wit: at $1.15 per bushel, amounting to the sum of $5807.50, out of which sum said Edgerton is to allow said Braclrett 42| cents per bushel for freight and wastage in transporting said wheat from Ottawa, LeSneur county, Minn., to said Milwaukee, Wisconsin, and also to refund to said Brackett the amount of the government tax on the shipping of said wheat. Said Edgerton guarantees said wheat .to be all No. 1 wheat, and to be inspected by B. Beaupre, of St. Paul, Minn.; and if any of said wheat upon inspection by said Beaupre should prove not to be No. 1, said Brackett is to take it notwithstanding, but said Edgerton is to refund to said Brackett the difference between the market value of such wheat and No. 1 wheat at said Milwaukee on said 14th day of April, 1865.

Calculation on the above :

5050 bush, wheat @ $1.15.$5807 50

Freight &c. on same. 2146 25

3661 25

Gov’t tax on shipping. 50 50

$3610 65

Said wheat to be received by said Brackett at Ottawa, Le Sueur county, Minn.

j IT. S. Bev. Stamp,} Eeastus S. EdgeetoN, [seal.]

( 5 cents. f Geobge A. BeACKett.

Witness : W. B. Bell. ”

The referee who tried the case has reported as the facts : “ That the said plaintiff and defendant at St. Paul, in the State of Minnesota, on the 20th day of April, 1865, did execute and deliver the contract for the sale and purchase of wheat set out in the complaint in this action, and the plaintiff then and there paid the defendant for said wheat the said contract price.

That on the 20th day of April, 1865, at said St. Paul, and at the same time of the execution of and delivery of said contract, the defendant executed and delivered to the plaintiff two several orders for the delivery of the wheat sold and purchased by said contract, in the words and figures following, to wit:

‘N. & O. A. Dane will please deliver to Geo. A. Brack-ett or order, the amount of three hundred (300) bushels No. 1 wheat, to be delivered at boat at Ottawa, in sacks, free of charge, said Brackett furnishing sacks.

E. S. EdgeetoN.’

‘ St. Paul, April 20th, 1865.’

‘Messrs. ¥m. S. Hazzard & Son will please deliver to Geo. A. Brackett or order, the amount of four thousand seven hundred and fifty (4/T50) bushels No. 1 wheat, said wheat to be sacked and delivered to boat at Ottawa, Minn., free of charge, said Brackett to furnish sacks.

E. S. EdgeetoN.’

1 St. Paul, April 20th, 1865.’”

He has found as conclusions of law : “ That the said defendant did break and violate said contract, in this, that he did not deliver to said plaintiff the amount of five thousand ■and fifty bushels of No. 1 wheat at or to the boat at Ottawa, as by the terms of said contract he was bound to do, but did only deliver the amount of four thousand two hundred and forty-five bushels and nineteen pounds of No. 1 wheat at boat at said Ottawa, and four hundred and fifteen bushels and fifty-seven pounds of No. 2 wheat, and twenty-seven bushels and twenty-seven pounds of rejected wheat, and four bushels and thirty pounds of stumptail wheat, at said place last above named. ”

The contract first above set out, and the orders for the wheat set out in the report of the referee, being part of the same transaction, are to be read together, and they clearly show that the agreement was that the defendant should deliver the wheat in sacks free of charge, to or at the boat at Ottawa, and the parties by their agreement have so interpreted it.

The appellant’s position, therefore, that the delivery of the warehouse receipts was constructively a delivery of the wheat and a fulfillment of the contract on his part, is untenable.

We consider his position also untenable as to the “ 330 or 340 sacks hauled to the levee.” He can not be heard to say now that that constituted a delivery, he having received the wheat'back into his warehouse, and subsequently delivered it to the plaintiff under the contract; and whether it was a delivery or not is wholly immaterial, for it appears from the evidence that it has all been received and accounted for to him by the plaintiff.

■ The plaintiff cannot recover the expense of sending the barge to Ottawa. It may well be doubted whether that was either the natural or proximate consequence of the breach of the contract; if not it could not be recovered even if specially alleged.

It does not appear that it was in contemplation of the parties that the wheat should be shipped otherwise than by the regular line of boats on that river. But however that may be, the item is not recoverable as general damages, for it can not be presumed.to have resulted from the breach ; it certainly is not the necessary result of it, nor is it recoverable as special damages, not having been alleged. If special damage is not particularly set up it cannot be recovered. See 2 Green. 254-256 ; Sedgwick on Dam., Ch. 3; 1 Chitty's Pleadings, 338-395.

For another reason this item was improperly allowed. It does not appear that tbe defendant was in fault for not shipping by the barge. It -arrived at Ottawa, and the demand for the wheat was made on Sunday.

The demand on that day was illegal, and a nullity, and it would have been a violation of law for the defendant to have complied with it. Our statute provides that: “ No person shall keep open his shop, warehouse, or workhouse, or shall do any manner of labor, business or work, except only works of necessity and charity * ";f * on the Lord’s day, commonly called Sunday, and every person so offending shall be punished by fine,” &c. The legislature intended to prohibit any secular business (not a work of necessity or charity,).on that day, and the demand made in this instance, as well as a compliance with it would manifestly fall within the prohibition. Tucker vs. Mowry, 12 Mich. 378 ; Potter vs. Greely, 13 Met., 284.

It is argued that “ the warehouseman, by declining to deliver, on’the ground that the county treasurer held the wheat for a tax, waived all other grounds, and excused the making of any other demand:” But it was nota matter that the warehouseman or defendant could validate. The law is not enforced for the benefit of either, but to prevent the desecration of the day. The demand was void — not merely voidable.

The warehouseman was the defendant’s agent, for the purpose only of delivering the wheat, and it does not appear that he missed or neglected any opportunity to deliver it, except on Sunday, as'aforesaid. His statement, that the wheat was seized by the county treasurer, does not prove that fact. Nor is there any evidence to show that he could not or would not have shipped on the day following.

It is argued by the appellant, that the evidence showing the number of bushels of wheat received at Minneapolis, did not tend to show the number delivered at Ottawa, and therefore should not have been received against his objection.

The plaintiff testifies on this point: “The .wheat was weighed at our mills. I kept account of the sacks sent. All were returned, some with wheat and some without. There was no shortage until after I had received 3900 bushels, except 15 bushels; all the sacks that came after that were full. ” The plaintiff furnished the sacks, and it is not pretended that any of the wheat was delivered except in his sacks.. While this evidence may not be the most satisfactory, it certainly tended to establish the fact which it was offered to prove, and therefore was properly received.

The appellant also argues that Brackett’s evidence was not admissible on the issue of the market value of wheat at Ottawa. He testified: “ I received the wheat demanded at Ottawa from or about July 10th to July 15th. On the lYth August, 1865, 290 bushels and 20 pounds. I ama miller, was then, was in the habit of buying wheat in different places in the State in 1865.” This question was then propounded to the witness: “Ho you know what was the market value of wheat at Ottawa when you made the demand?” “Objected to on the ground that it did not appear that witness was acquainted with the wheat market at Ottawa. ” The objection was overruled and the defendant-excepted to the ruling, and the witness answered: “I was acquainted with the price at that time. No. 1 was worth at Ottawa then $1.20 per bushel, ” &c. The question asked only called for the witness’s knowledge of the price of wheat, and as this is a question on which it was competent for him to testify, the answer was properly received.

'Whether it would have been competent for the witness to testify as to the price of wheat at Ottawa from his per-? sonal knowledge of the price at other places in the State, is a question not raised by the objection of the defendant. The plaintiff when on the stand as a witness testified: “ I knew the value of wheat of the different grades in Milwaukee in April, 1865. I was buying wheat at that time with reference to the Milwaukee market. Had correspondence and circulars on the subject. I was shipping flour to the Chicago market. We frequently exchanged wheat receipts for wheat in Milwaukee, for wheat here, parties paying the difference in transportation, insurance, ” &c. Witness was then asked: “What was the difference at that time of No. 1 and No. 2 wheat in Milwaukee ?55 The ruling of the referee admitting the answer to the question is alleged as error, on the ground that the witness had not the requisite knowledge to enable him to testify. We are of the opinion that the referee was right in receiving the testimony.

The information which the witness acquired, by the means stated, was as full, accurate and reliable as could have been acquired in any other way. On such information business men rely, and act in their most important pecuniary matters. It appears from the evidence that the wheat was inspected in the plaintiff’s mill, and that only that part was inspected which he was unwilling to receive as No. 1. lie testified: “ I think I took as No. 1 about 3600 bushels before Kelly was called on. I notified defendant that there was a quantity of wheat that I could not take as No. 1. This was in July, a few days before we saw Kelly in St. Paul. We then agreed upon, Mr. Kelly to inspect the wheat at the mill. Kelly did inspect the wheat very soon after this.”

The parties having agreed upon an inspector by whom the grade of any wheat was to be fixed which the plaintiff considered inferior to No. 1, and it having been left with the plaintiff to have it graded according to the contract, or to receive it as No. 1 at his option, he is bound by the contract, and can legally be allowed no deduction on wheat which he neglected to have thus inspected. The contract of the parties is, “ that if any of said wheat upon inspection Toy said JBeaupre {Kelly) should prove not to be No. 1. * * said Edgerton is to refund said Brackett the difference,” &c. It was competent for the parties to settle by the contract the mode of inspection, and the conditions on which the ¡alaintiff should be entitled to a deduction from the price, and having done so, the plaintiff cannot recover on a breach of the contract with which it appears he has not complied, or without the performance of an act which is made a condition precedent to a right to recover.

In allowing the deduction on the wheat not inspected, we think the referee erred. "We think he also erred in the allowance of interest to the plaintiff from the date of the contract on the value of the wheat not delivered. While interest is allowed from the date of the contract, the value of the wheat is fixed at a much later date, and at a much higher price than it rated when the contract was made. The contract did not pass the title. It does not appear that the wheat sold was at the time of the sale separated or set apart. Indeed it appears on the contrary from the evidence that it was not, but that part of it was subsequently purchased.

There was therefore neither an actual nor a constructive delivery. The legal effect of the contract was that the defendant should deliver to the plaintiff the number of bushels of wheat of the grade specified, at Ottawa, on demand, within a reasonable time. Until such demand there was no default, and it is not proven that a legal demand was made any given length of time before the commencement of this action. The referee found “ that the plaintiff made a de■mand before the commencement of tbis action.” How long before does not appear. Before default defendant was not liable for damages, and as the interest is only allowable as ■damages, it could only commence to run after default. The allowance for extra freight is erroneous. It seems to be founded on the demand made on Sunday, which we hold gave the plaintiff no right. Except in failing to comply with that demand, it does not appear that the defendant was in default until he had delivered all the wheat which the plaintiff has received under the contract.

Judgment reversed.