No. 1,599 | Ind. Ct. App. | Sep 25, 1895
The appellant sued the appellee to recover the price of 5,000 Patent Helix Needle Cards, at three cents per card, amounting to $150.00. The complaint is in three paragraphs, the first declaring on an open account, the second on a written order for the goods, and the third on a written contract, consisting of a soliciting letter sent by the appellant to the appellee, and an alleged written acceptance of the same sent to the appellant by the appellee. The appellee answered the general denial. The cause was twice tried before a jury, each trial resulting in a verdict for the appellee, the defendant below. The first verdict was set aside on appellant’s motion. The refusal of the court to grant the. appellant a second -new trial constitutes the only error assigned and relied upon. The appellant urges the insufficiency of the evidence to sustain the verdict. The evidence shows, without material conflict, that in response to a circular letter inclosing a blank order, the appellee filled out and sent to the appellant, by mail, such order, of which the following is a copy:
*184 “August 21, 1893.
“ J. A. Coates & Sons, Limited,
“Department A,
“Needle Manufacturers,
“New York City:
“Please put up for us, and ship by the cheapest way, 5 M. Patent Helix Needle Cards, with our advertisement printed in space below the goods for that purpose, on each card, in the following sizes:
“Sharp, s, ■*, T, j.j, Betweens, y?T.
“Please write advertisement in this space:
W. A. HUEFINE,
Dealer in
Dry Goods, Groceries, Boots, Shoes, Hardware, Etc.
Kirklin, - - Indiana.
“Terms : — Three days from date of bill; 10 per cent, ten days.
(Signature of firm) “ W. A. Huffine,
(Town) “Kirklin,
'(State) “Indiana.”
Appellant on receipt of the order shipped a consignment of goods, such as were ordered, by way of Merchants Dispatch Transportation Company, on September 6, 1893, addressed to W. A. Huffine, Kirklin, Indiana, and sent to appellee, by mail, a bill for 5,000 Patent Helix Needle Cards, at three cents per card, which was received-by appellee in due course of mail. • On the same day as the receipt of the bill Huffine wrote a letter to appellant, of which the following is a copy:
“Kirklin, Ind., September 11, 1893.
“Messrs. J. A. Coates & Son:
“Gentlemen — Your bill for needles received to-day,*185 and I see that some one has made a terrible mistake. I can never use 5,000 papers in the world. My intention was to order 5 M. needles, forty papers in an M. and the order would amount to $6.00. For heaven’s sake do not send me 5,000 papers, as I am here in a small place and can never dispose of them or pay for them. Please do not send them. If it is my mistake I will pay you for your trouble and let you keep them.
“Yours, etc.,
[Signed] “W. A. Huffine.”
Four or five days after writing and sending this letter Huffine received notice that the goods were at the depot at Kirklin, but he did not take them out or receive them for any purpose until some time after the commencement of this action, and after the first trial, when he paid the freight and had the goods taken to a private warehouse, for the sole purpose, as he says, of examining them to ascertain whether the packages contained the full number of needle cards contained in the order, to-wit, 5,000. Upon examination it was found that the packages contained forty-six cards less than 5,000.
The railroad agent at Kirklin testified that the boxes containing the goods marked from J. A. Coates & Sons to W. A. Huffine, Kirklin, Indiana, arrived at Kirklin on September 14, 1893, and that he promptly notified Huffine of their arrival on the same day; that the boxes remained at the depot till June 21, 1894, at which time they were delivered to Huffine; that so far as he knew the goods remained in the freight house all the time they were in the railroad company’s care, but were not under his constant observation, and that'he could not say that they were in the same condition when taken away as when they arrived.
A number of witnesses testified on behalf of appellant that the exact number of cards called for in the order
It is the contention of appellee’s counsel that, conceding that appellee contracted for the goods as claimed by the appellant, the contract was an entirety, and that appellee was not bound to accept a smaller or other quantity of goods than that called for by the order, and that if appellant relies upon the contract it must prove that it performed the whole of it by shipping to the appellee the exact quantity ordered by him. Smith v. Lewis, 40 Ind. 98" court="Ind." date_filed="1872-11-15" href="https://app.midpage.ai/document/smith-v-lewis-7039210?utm_source=webapp" opinion_id="7039210">40 Ind. 98; Hausman v. Nye, 62 Ind. 485" court="Ind." date_filed="1878-11-15" href="https://app.midpage.ai/document/hausman-v-nye-7042549?utm_source=webapp" opinion_id="7042549">62 Ind. 485.
W e regard the rule to be as contended for by appellee if appellant relied upon the express contract. The evidence on the one hand to the effect that the goods were shipped in the quantities and sizes ordered, and the evidence on the other hand that they were short upon arrival, or at least when opened, made it a case peculiarly within the province of the jury to determine whether in fact the goods had been shipped by the appellant in the quantity ordered by the appellee. It is true that the placing of the goods on board the cars in New York was all the appellant was required to do. This was a complete delivery to the appellee and vested the title of the property in him. Rechtin v. McGary,
Of course if the appellee accepted any portion of the goods he is liable for them, and appellant could have recovered for the same under the issues j oined. But we cannot say as a matter of law that the taking of the goods, under the circumstances shown, was or was not an acceptance of the same. This was likewise a question for the jury, and their verdictfor the defendantwas afindingthat it was not such an acceptance.
One of the instructions requested by the appellant informed the jury that if the appellee accepted any portion of the goods by paying the freight and taking them out of the freight office and into his possession by directing' what should he done with them, he thereby waived any defect as to the number and quantity, and was liable for that portion of the goods so accepted by him. The court modified this instruction by adding to the condition the further one that if appellee exercised acts of ownership over such goods, he would be liable for them. We find nothing improper in this modification. Whether the. acts of the appellee were or were not acts of ownership over the goods, was for the jury to determine. Another instruction was similarly modified and for similar reasons the ruling must he upheld.'
Many other reasons are presented in the motion for a new trial, but the foregoing are the only ones discussed in appellant’s brief, and are, consequently, all the appellants are entitled to have considered.
Judgment affirmed.