2 Colo. 514 | Colo. | 1875
The contract obligated McCormick to deliver the flour in controversy to Bartels & Co., at the city of Denver. The carrier was not the designated agent of the vendees, and consequently a delivery to him cannot be regarded as a delivery to them. The flour, at the time the contract was made, was yet to be manufactured and the title could not vest in the vendees until it was ground and until there was a delivery and acceptance by them. The rule applicable to the sale of a specific and ascertained article cannot obtain here. Something was to be done on the part of the seller, and until it was performed, and until there was a delivery and acceptance on behalf of vendees, the title remained in him. The carrier to whom the flour was committed for transportation, as well as the appellants who received it from them, must be regarded as the agents of the vendor, and the law perpetuates this agency until some act is performed by the vendees which passes the title to them. After the flour reached Denver, and after Matzdorf had delivered it to the Salomons, and taken their receipt therefor, Bartels made a demand of them for the flour. The learned judge who tried the case, when resolving the motion for a new trial, was of the opinion that this demand was tantamount to an acceptance of the flour, and from the date of the demand, title vested in the vendees so as to enable them to maintain this action. It is clear that the flour in question was appropriated by McCormick to Bartels. His intention to deliver it to them is manifested by the directions given the carrier. Now it would seem, this being so, that if the appellees at any time assented, under such circumstances as to be bound by that assent, to what had been done by McCormick, if there was a meeting of their minds, the wrongful act of the carrier, or of any tliird person, would not take away from the acts of the buyer and seller the consequence and effect which the law would otherwise ascribe to them. Sewell v. Eaton, 6 Wis. 479; Benjamin on Sales, 246 to 271.
The evidence is clear that the appellees did assent, for upon finding that the flour was in possession of the defendants, Julius Bartels, acting on behalf of the plaintiffs,
They might have accepted the wheat elsewhere than at the place of delivery named, if they saw fit, and they were at liberty to accept it incumbered with a lien for the carriage, if it seemed to them to be for their interest, and if they did this with the assent of the vendor, they become invested with the property.
The only question, therefore, would seem to be whether or not the demand and avowed acceptance of Bartels while the flour was in Salomon’s possession, could operate to vest the title in them, notwithstanding the bailee or agent of the vendor refused to deliver. The authorities on this subject are not uniform, and the English and American are in open conflict. In Bental v. Burn, 3 B. & C. 423, the action was brought to recover £13 14s, the price of a hogshead of Sicilian wine. On the trial it appeared that the bankrupts had sold to the defendants a hogshead of Sicilian wine, then lying in the London docks, and at the same time
It is claimed, however, by appellants, that McCormick sold the flour to Martzdorf. Whether or not there was a sale to Matzdorf; whether or not Matzdorf had authority to divert the flour from its destination, were questions submitted to the jury, and they resolved them against Matzdorf. We think, however, that the instructions of the court on this subject were calculated to mislead the jury, inasmuch as they seem to have limited the inquiry to a point of time anterior to the shipment. According to the view we take of the case, it was competent for McCormick to have changed his mind as to the disposition of the flour any time after the shipment, and prior to the demand and acceptance by the Bartels. As we have said above, the delivery to the carrier was not a delivery to the vendees. The flour was at McCormick’s risk, until acceptance by Bartels. If, during the time intervening between shipment and acceptance, McCormick made a valid sale to Matzdorf, then any demand or acceptance by the Bartels, while the flour was in the possession of the Salomons, would have been unavailing and nugatory. This view of the case was not clearly presented to the jury. The evidence on this whole subject of sale, and especially as to the time when the bill of sale was made out, is quite obscure There is considerable room for doubt, upon the evidence in the record, whether the bill of sale ante-dated in point of actual execution, or post-dated the demand and acceptance of the Bartels. The instructions proceeded upon a false theory, as to the time when Bartel’s rights vested, and as to the
At the time this suit was brought, the statute allowed the defendant in replevin to retrieve the goods by executing a forthcoming bond. This course was pursued here. The rule of damages in actions of replevin is not uniform. It depends on the character of the property. In an action to recover a horse, or other property having a usable value, the value of the use during the detention has been regarded as the correct measure of damages. In many cases, interest on the value, from the time of the wrongful taking, would be a proper measure, and this seems to be the rule applied in all cases where the property detained is merchandise, kept for sale, grain and all other articles of property, useful only for sale or consumption. Allen v. Fox, 51 N. Y. 565; Suydam v. Jenkins, 3 Sand. S. C. R. 614; Burgee v. Maybee, 21 Wend. 144.
Judgment reversed, and case remanded for further pro ceedings. Reversed.