14 Wis. 5 | Wis. | 1861
By the Court,
We can discover no error in the rulings of the court below in this case. The action was brought to recover the value of a quantity of flour, sent by the plaintiffs to the defendants as warehousemen in Milwaukee, consigned to H. McGraw & Son, McGrawville, New York. The complaint alleges that after the flour had been so received by the defendants, and while it was in their possession, the plaintiffs, through a .properly authorized agent, instructed them to forward it by the Detroit and Milwaukee railway; but that, in violation of such instructions, they sent it by a propeller around the lakes, whereby it was lost. The answer admits the receipt of the flour, admits that it was sent by a propeller, averring that to be the usual mode,
The evidence offered by the defendants had a tendency to show that these conversations did not take place. But whether they did or not, was fairly left to the jury, to whom it properly belonged. And all that we have to determine is, whether, assuming that they did take place, they amount to a direction to the defendants to deliver the flour to the railway company. Of this we have no doubt. Nobody of ordinary intelligence could understand it otherwise. The witness Holmes was right in saying that when he told them an order for the flour had been given to the railway company, it was implied that they would call for it. It was also clearly implied that when called for it should be delivered. There could have been no other possible motive for giving the notice, and no other construction could have been placed on it by the defendants. The defendants have in their possession, as warehousemen, the flour of the plaintiffs, subject to the plaintiffs’ directions as to shipping. The plaintiffs notify them that they have contracted with a particular line to carry the flour, and given an order for it, and the defendants say it is all right. Is it possible, after such a conversation, that the defendants could send the flour in another direction upon the pretense that they supposed that they still had a discretion to send it by whatever route they pleased? We think not, and that defendants’ agents who testified would not claim exemption on that ground. They claimed that no such conversation as was testified to by the plaintiffs’ witnesses ever took place. But their testimony implies that if it ever had taken place, and they had been made to understand the language used, they would have made no question about its being a direction about the flour. We think, therefore, there was no error in the charge in this respect.
But it is further claimed that inasmuch as the complaint did not aver that the defendants acted for hire, it is to be assumed that they were to charge nothing, and that they were
But the true answer to this objection is, that the action is
For these reasons, we think there was no error; and the judgment is affirmed, with costs.