1 Cow. 345 | N.Y. Sup. Ct. | 1823
Lead Opinion
The boundary, which separates the powers and duties of Courts and Juries, has long been well defined. The jury are to ascertain and determine any facts which are disputed ; the Court are to pronounce the law upon those facts. The facts established in this case, beyond dispute, are the contract between Utly and Spotswood for the oars, the agency of Spotswood, the delivery of the oars by Utly, and the receipt of them by Spotswood, at Coteau de Lac. Had the evidence closed here, there would be no doubt about the plaintiff’s right of recovery. The important question then is, has he divested himself of that right ? Spotswood told Utly, at the Cedars, that he had been disappointed in procuring money, and could not pay for the oars ; and that he (Utly) must do the best he could with them. What reply Utly made does not appear; but, at Montreal, he took the oars in question from Spotswood’s raft, and sent them by Mr. Herrick to Dr, Man, at Quebec, to be sold for his (Uthfs) benefit. He calls them his oars, in the receipt and order on Herrick, for the proceeds of the sale. These facts are equally undisputed. A question of law, then, arises for the Court to decide, viz. whether the declaration of Spotswood, and the subsequent taking the oars from the raft, and disposing of them for Utly's benefit, he treating them distinctly as his own, are not full evidence of a re-sale of the oars by Spots-wood to Utly. In my opinion they are, even independent of the receipt and order ; and that the plaintiff shewed no right to recover : that it was the duty of the Court below so to have decided : and that, of course, the plaintiff should have been nonsuited. I think this case clearly
I am accordingly of opinion, that the judgment must be reversed, and a venire de novo awarded.
It was in evidence, .¿bat after the oars were delivered to Spotszoood, and were on their way to Montreal, and when Utly was entitled to his pay for them, Spots-•mood told him he could not pay him, and that he must take the oars, and do the best he could with them. He, accordingly, accompanied the raft and oars to Montreal, and there delivered them to Herrick, to take to Quebec, to Dr. Man, to be sold on Utly^s account. There was no evidence of payment being demanded for the oars, at Montreal, either of Healy or Spotszoood, or of any notice, to either of them, that the plaintiff would sell the oars on their account, and hold them responsible for the difference between the price agreed to be given by Spotszoood, and that at which they might sell.
Upon this evidence, the defendant moved for a non-suit, on the ground of its being apparent that Utly con-" sidered the contract with Spotszoood rescinded, and treated, and disposed of the oars, as his own.
I think the nonsuit ought to have been granted. It is perfectly clear that Utly, on his arrival at Montreal, considered the contract at an end, and the oars as his own. And, on the authority of the cases of Pratt v. Hull, (13 John. Rep. 334) and Foot v. Sabin, (19 John. 154) the refusal to grant the nonsuit was error, for which the judgment must be reversed, and a vemire de novo awarded, returnable in this Court.
Dissenting Opinion
He said, the purchase of the oarsi a stipulated price, was fully proved, as well as the subsequent delivery. Healy admitted that Spotswood was his agent, so far as related to all lumber contracts made by him at or near Salmon River. From this state of facts, Utly was entitled to recover, unless the defendant has shewn that the contract was rescinded. The only evidence applicable to this part of the case is, that soon after the delivery of the oars, and before the raft arrived at Montreal, Spotswood informed Utly he could not malee payment, and that he, Utly, must do the best he could with them. It docs not appear that any reply was made, nor explanation given, as to the terms upon which the oars were to be taken. At Montreal, Utly took the oars from Spotswood1 s raft, and delivered them to Herrick, to take to Quebec, to be sold for his benefit. The highest price for oars, at Quebec, was one penny per foot: Spotswood1 s contract was one and a half.
The defendant gave, in evidence, a receipt, from Utly to Herrick, in the words following : “ Rec’d. of Martin Herrick, ten dollars, which he is to take when he sells my oars also, a draft for $40. A motion was then made for a nonsuit, on the ground that the contract was rescinded, which was overruled, and the defendant excepted. There was no question of fact to be submitted to the jury. It is a mistaken view of the case, to say that the jury were to decide whether the contract was released or rescinded. The right to recover depends oh the legal effect of Spotswood1 s direction to the plaintiff, to do the best he could with the property, and his subsequent acts. In the case of Sands & Crump v. Taylor & Lovett, (5 John. 395) the plaintiffs sold to the defendants a cargo of wheat, who received a part, but refused to receive the remainder. The plaintiffs made a tender of the residue, and gave notice that, unless the defendants received and paid for the whole, the residue would be sold at auction and they held responsible for any deficiency. The Court held, that the contract between the parties, and its part execution, produced a change of property; that the defendants became entitled to the wheat, and the plaintiffs to the price; that they became agents for the defendants, from necessity.
The principle of this case, I consider decisive of the present. The sale, by TJtly, was not, per se, a waiver. The vendor having a right to sell, where the possession is thrown on him, although the vendee does' not consent, I do not perceive how any well founded objection can be raised, after the vendee, by his act, restored possession to the vendor, and requested him to sell to the best advantage. By this act, the vendee appointed the vendor his agent.
It may be farther remarked, that the plaintiff, having a clear right to recover the contract price, the defendant ought to have shewn that the plaintiff agreed to accept the oars, in full satisfaction. But there is no such proof. The plaintiff merely sells at the request of the defendant. This is perfectly consistent with the claim he now sets up. He credits what he received, and demands the balance. If he had received more than the contract price, he was liable to refund the excess. In as much, then, as the plaintiff has not released, nor received payment, in full, nor given his assent to rescind, it would be consistent neither with law or justice, to deprive him of his remedy. I cannot conceive that the ease would be altered, if the defendant had delivered any other property to the plaintiff, and directed him to sell it. It would hardly be contended that it extinguished the debt. There must be proof it was so agreed, before we can arrive at that conclusion. The expressions used, shew that no such thing was intended. If, in truth, the plaintiff had received back the property, in satisfaction of the contract, it was immaterial to the defendant what disposition was made of it; but if it was delivered to an agent, to be applied, then the direct .ons, as to the sale, are pertinent, and accord with the inter . I am of opinion, that the Court below decided corr- „ly, there being no evidence that the contract was rescinrd ; and, consequently, the judgme t should be affirmed.
Judgment reversed.