Green v. FeilGreen v. Feil
- Reporters:
- Before:
- Cole
Thе court below seems to have properly directеd the jury, to meet the evidence on either side. The plaintiff insisted that he was acting as an agent merely in buying the turtle for the defendant, and that he assumed no personal liability in the matter. His evidence tended to sustain, that view. And to meet that case the court told the jury, t¿at if they found from the evidence that the plaintiff acted as agent for the defendant in ordering the turtle from Hew York, and if the turtle was shipped in good order, was injured before it *623arrived at Milwaukee, witliout fault of thе plaintiff, but the injury was not known to the plaintiff when the turtle was left by thе carrier, then under no circumstances was the plaintiff liable for such injury, and, having paid therefor after its receрtion before knowledge of the injury, he was entitled to recover the amount paid of the defendant. “We do not see that the defendant has any jnst ground to complain of this сharge. There is nothing to show that the plaintiff did not act with prоper diligence and care in the execution of his аgency. It is true, he testified that he paid for the turtle after he had notice from the defendant that he did not want it. But it appears the turtle was purchased on his own credit, and the uncontradicted testimony shows that the turtle was healthy and strong, and in good condition, when shipped at ETew York, and that it is the сustom of the trade for buyers to take the risk of turtles shippеd to them; Under those circumstances, we do not see hоw the plaintiff could avoid paying for the turtle. The vendor оf the turtle had the right to look to him for his pay, there being nothing tо show that he was acting for another party. And if the plaintiff was acting as agent in the matter, upon what ground can it be claimed that he was responsible for an injury to the turtle while in trаnsit?
But the defendant insisted that the plaintiff undertook to furnish, sell and deliver to him at Milwaukee a live salt-water turtle, which might be keрt alive on - exhibition two or three weeks at his restaurant, and then served up in the usual way to his customers; and that the turtle dеlivered was in a sick and dying condition, and wholly unfit for the purpоse for which it was ordered. The court charged that if this was thе contract, then the plaintiff was bound to furnish him with a healthy turtle, and if the one delivered was not sound, the plaintiff was not entitled to recover in the action. The court added in this cоnnection, that if the defendant was put to any expense on account of the turtle, “ he would be entitled to re*624coup it against the plaintiff.” It is said, if the plaintiff was not entitled to recover in the action, there could he no recoupment; and this is so. But this inaccuracy in the expression could not possibly have injured the defendant.
It is unnecessary to observe that we cannot go into an examination of the testimony to determinе whether the verdict accords with the weight of evidencе. There is ample evidence to support the finding of the jury; and the verdict is conclusive upon the questions of fact.
By the Gowrt.— The judgment of the county court is affirmed.