80 Mo. 297 | Mo. | 1883
Respondents sued the appellant in the circuit court of Holt county, and alleged in substance that: They were partners and stock dealers, and shipped to Chicago 345 head of fat hogs to one Eisher, a commission merchant, who was to sell them for plaintiffs; that Glass, one of the plaintiffs, went to Chicago, and after negotiation, sold them to defendant, Gelvin, for $4.60 per hundred, and
The evidence, on tbe part of plaintiffs, tended to prove tbat when tbe sale was made, about nine o’clock in tbe forenoon, Glass and Gelvin went to tbe stock-yards, and tbe bogs were all there, but Eisher was not; tbat they returned about eleven o’clock and found Garrett, Eisber’s salesman, in tbe pens; told bim tbe bogs were sold to Gel-vin ; tbat Garrett then said to Gelvin, “ Then I may consider myself acting under your orders,” and Gelvin said “ Yes;” Garrett then said be bad sold 110 bead of them; Gelvin did not object, and then gave Garrett instructions about tbe bogs. They were to be weighed between twelve and two o’clock. Tbat Gelvin went to Eisber and told bim be bad bought Glass’ bogs, and tbat a part of tbe light ones bad been sold out, and made a bargain with Eisher to “handle” tbe bogs.for bim, tbe same as he was for Mr. Glass.
The evidence, on tbe part of tbe plaintiffs, tended to prove all tbe allegations of their petition, except tbat “ Eisber, as such consignee and agent of said defendant, sold and disposed of said hogs for tbe defendant.” As to this-allegation plaintiff Glass testified : “ I ordered Mr. Eisber to sell them. He did so. He sold them for me, at my request, and not for Mr. Gelvin, and tbe proceeds were applied on my contract with Gelvin. Hogs were going down and they were sold next day after my sale to Gelvin. Eisber
The evidence, on the'part of the defendant, tended to prove that when he found Fisher had sold 110 head of the hogs he refused to take the others, although Glass offered to turn over to him the receipts for those sold; that defendant was willing to cany out the contract if the whole number was furnished; that hogs were declining, etc.
I. The first question raised by the appellant is as to the delivery of the hogs after the sale. “ When the law can pronounce upon a state of facts that there is or is not a delivery and acceptance, it is a question of law, to be decided by the court. Rut where there may be uncertainty and difficulty in determining the true intent of the parties respecting the delivery and acceptance from the facts proved, the question of acceptance is to be decided by the jury.” Howdlett v. Tollman, 14 Me. 400. When there is no dispute as to the facts, it is a question of law. When the evidence is conflicting, the jury must decide. Hatch v. Bayley, 12 Cush. 29; Williams v. Gray, 39 Mo. 201; In this case the facts were in dispute, there was "conflicting evidence; the plaintiffs’ evidence tending to prove one thing, and the defendant’s just the reverse. This question was, we think, fairly submitted to the jury by the .instructions, and their action as to this point must be conclusive.
II. The second point made by the appellant is, in substance, as the first. It is a question of fact as to delivery and acceptance of possession. If the facts are as the defendant’s evidence tends to prove, then the authorities cited are in point; but the facts being in dispute, the question is with the jury. The statute of frauds was not pleaded. Graff v. Foster, 67 Mo. 512. And if it had been, and the hogs were sold and possession delivered, it would not avail. A vendor may sell goods in the possession of his agent or bailee; and transfer a valid title;, and the possession of the bailee then becomes the possession of the vendee. Erwin v. Arthur, 61 Mo. 386.
A.11 that part of the second instruction material to consider, is as follows: “ If the jury believe from the evidence that the plaintiffs contracted and sold to the defendant a certain number and lot of hogs, at a certain price, and at the time of the sale apart of the hogs had been sold to other persons by the agent of plaintiffs, and that the defendant thereupon refused to take the remainder of said hogs because the whole number bought were not there, the jury should find for the defendant; but if the hogs were all there when the contract was made, and it was a part of the contract that the hogs should remain with Fisher & Co., and they should continue as the agent of the defendant; this was a valid sale, and the fact that a part of them were afterward sold by said Fisher’s salesman before they were weighed, would not release defendant from the con*
The second clause of this instruction is objected to because it submits to the jury the question of acquiescence by the defendant in the sale made by Eisher, whereas there is no such allegation in the petition. The petition simply alleges a sale and delivery of the hogs in Eisher’s hands, and an acceptance by the defendant in the agent’s hands. The defendant denied it. This was the issue. Now the plaintiff'. seeks to say, by this instruction, that if my allegations are not true, nevertheless the defendant ratified and acquiesced in the sale by Eisher, and is, therefore, liable. The evidence tended to prove that when Glass and the defendant Gelvin went to see the hogs, and ascertained that part of them had been sold, he did not object, but gave Eisher, the commission merchant, instructions concerning them. In the case of the Capital Bank v. Armstrong, 62 Me. 59, the defendant Armstrong was sued as the indorser of a note ; he answered, alleging that certain words were inserted in the note after he signed it, without his authority, and it was, therefore, void as to him. The reply denied the new matter contained in the answer. The case was tried on these pleadings, but the evidence tended to prove a ratification by Armstrong after learning the change had been made. The plaintiff' sought to submit the question of ratification to the jury by an instruction. The court say the case was tried on the theory of the pleadings, and it is too late to ask an instruction on the theory of subsequent ratification. A party can only recover on the case he makes in his pleading. Moffat v. Conklin, 35 Mo. 453. In this case the petition presents no such issues as that of a subsequent ratification by defendant; and plaintiffs cannot recover if it turns out that a ratification by defendant after
The judgment is reversed and the cause remanded.