Champlin v. Church

76 N.J.L. 553 | N.J. | 1908

The opinion of the court was delivered by

Mintuen, J.

The defendant delivered to the plaintiff, a grain merchant in the city of Newark, the following order: “Please have shipped to me at South Eiver, via N. J. Central Eailroad, one car, three mixed corn, price 57; Shipment, Hurry; Terms, Arrival draft; Eemarks: Western Official Certificate of weight and grade final.”

The plaintiff ordered the required corn from a concern at Toledo, Ohio, and it was delivered at South Eiver, where the defendant refused to accept it upon the ground that it was damaged by heating. The plaintiff having waited a reasonable time for the defendant to accept the corn, finally sold it, after notice to defendant, and brought this action to recover the difference between the price realized upon the sale and the agreed price of the corn.

The judgment of the Essex Circuit Court, where the case was tried' without a jury, was for the plaintiff, and from that judgment this writ of error is taken.

The conspicuous feature of this case, which differentiates it from the ordinary case in the category of vendor and vendee, consists in the fact that the vendor in the case at bar was so limited and circumscribed in the exercise of judgment by the language of the written order from which he derived his authority to purchase that he was, in essence, a mere conduit or special agency through which the goods were to be delivered. Upon the execution of the order and substantial compliance with its requirements his duty was performed, and his right to the agreed compensation was complete. Butler v. Maples, 9 Wall. 766; Story Ag. 136.

It will be observed that he was .not to ship, but to “have shipped” to the defendant at a fixed price, corn of a certain quality, over a certain railroad, the grade or condition of the corn to be evidenced not b]r his judgment but by a certain form 'of certificate which as between him and the defendant was to be final. “Both in morals and in law,” remarks a recent writer of distinction, “one is responsible for the thing which he brings to pass, whether he emploj^s an inanimate object to effectuate his purpose, or sets in operation the infinitely more complicated chain of causation which results from the employment of another molal agent.” “Legal Liability” by Street, ch. 41.

The trial court found as a fact that the corn when shipped was in good condition, and therefore the delivery to the carrier in accordance with the specific instructions contained in this order relieved the shipper of liability for damage in transitu and imposed the burden and risk of damage upon the consignee. Dawes v. Peck, 8 T. R. 330; Conn v. Reed, Dawson & Co., 44 Vroorn 113; Wilcox Silver Plate Co. v. Green, 72 N. Y. 17; Silvestri v. Missocchi, 165 Mass. 337; Benj. Sales, § 693; Tif. Sales 195.

In the light of this status it became a matter of slight, if any, importance whether the testimony of a conceded dealer in grain, not for the purpose of contradicting the terms of the order, but for the purpose of eliciting the meaning of a trade expression employed therein, was relevant, although under the undeviating rule and policy of the courts in such matters it was properly admitted. Steward v. Scudder, 4 Zab. 96; N. J. Zinc Co. v. Boston Franklinite Co., 2 McCart. 418; 17 Cyc. 685.

No error appearing in the record, the judgment is affirmed.

For affirmance—The Chancellor, Chief Justice, Garrison, Swayze, Reed, Trenchard, Parker, Bergen, Yoorhees, Minturn; Bogert, Yredenburgh, Yroom, .Green, Gray, Dill, J.J. 16.

For reversal—None.