23 Wash. 34 | Wash. | 1900
The opinion of the court was delivered by
The respondent, Andrew Knox, is the receiver of the Friday Canning Company, a corporation existing under the laws of the state of Washington, and was appointed such receiver on the 27th day of August, 1898, by the superior court of Snohomish county, in an action wherein John Walsh was plaintiff and the said Triday Canning Company was defendant. The principal place of business of the Tridav Canning Company, prior to the appointment of the receiver, was Stanwood, Snohomish county, Washington; and the business of said Company was controlled and managed by Trank P. Triday, its president and general manager. Some time in the latter part of July or the first of August, 1898, the Triday Canning Company became insolvent and was wholly unable to pay its debts; hence the action instituted in Snohomish county and the appointment of the receiver therein.
About the 15th day of July, 1898, the appellant sold to the Triday Canning Company certain goods, wares and merchandise, consisting of lacquer, turpentine, and lacquer shading, aggregating in all the sum of $203.98. The sale was made under the following circumstances: Early in the month of July, 1898, Mr. Triday went to the place of business of the appellant, in the city of Seattle, and stated that he would require some lacquer and turpentine, to be used at his cannery at Stanwood, and made
“What kind of an understanding did you have with him [the wharfinger] about you taking goods out? Ans. Well, he doesn’t stay at the wharf, you know, all the while; and he has other business, and so that I wouldn’t have to be running after him, or he running after me, I told him I would take them as I wanted them. He says, ‘All right, here is a key; go down and get them as you want them.’ ”
The wharfinger had never received any instructions to retain the goods until the purchase price was paid, or until the freight was paid. It may be fairly presumed from the evidence that the statements of Mr. Friday touching ability to pay for the goods on delivery, and as
This action was brought by the respondent to recover from W. P. Fuller & Co. the value of the property taken away from the canning company after it became insolvent, upon the theory that all of the property of the Friday Canning Company, upon its becoming insolvent, became a trust fund in the hands of its officers for the benefit of all its creditors. To the complaint appellant put in several defenses: That, after the shipment of said goods, appellant learned of the insolvency of respondent, and retook said goods while still in the warehouse of the common carrier; that respondent had agreed to pay for the goods so sold to it by appellant in cash on delivery, and that respondent did not pay as agreed; that at the time of the purchase of these goods the Friday
The sole ground of the motion for peremptory instruction was that the title to the goods sold by the defendant to the Friday Canning Company had never passed to the Friday Canning Company, under what its counsel assumed to be a conditional sale contract. After hearing the argument on this motion, the court was of the opinion that a verdict should be directed, but that it should be against the defendant, with the right, however, to the defendant to have the amount of the verdict to be rendered fixed by the jury. Under appropriate instructions to that end, the jury retired to consider their verdict, and subsequently returned a verdict in favor of the plaintiff for the sum of $165. From the judgment entered thereon, proper exceptions having heen saved, this appeal is prosecuted.
The allegation of the answer as to the sale is that the appellant sold the goods to be paid for in cash on delivery at Stanwood.. The proof is that the goods were sold to be
When the evidence was all in, counsel for the appellant was of the opinion that on the question of the sale and de
“Mr. Seymour goes upon the witness-stand and states what the contract of sale between Mr. Friday, or the Friday Canning Company, and Fuller & Company was. Now, what is it? He says they were sold to be paid for in cash upon delivery. I contend, your honor, that goods sold, to he paid for upon delivery, as a matter of law, means that the title does not pass until the goods have been paid for; in other words, that delivery and payment go hand in hand. You cannot have the one completed without the other; and the authorities, I think, bear me out on that proposition. Now, the reason that I ask for an instructed verdict at this time, upon that theory of the case, is that nobody has contradicted Mr. Seymour — nobody has attempted to contradict him. His testimony stands alone before the court, and there is nothing for the jury to determine. The court is compelled to instruct the jury, that, if these goods were sold for cash on delivery, we are entitled to a verdict, because we took the identical goods that we had conditionally parted with. We sent the agent and representative of W. P. Fuller & Company to Stanwood. He takes the very goods that we had parted with, and which the testimony shows were never paid for, only in part. I don’t care whether there was a completed delivery, or whether there was not. Now, under the testimony in this case, if I am right upon that proposition of law, the mere fact of goods sold to be paid for upon delivery is conclusive and binding upon this court.”
The court below entertained the same view of the law that we entertain and ruled that the sale was a completed one; that the only question for the jury was the value of the goods taken by the appellant, and submitted that question alone to the jury. The court acted correctly. The legal sufficiency of the evidence was challenged by this motion, and it was the duty of the court to decide, as a matter of law, its effect. In Grigsby v. Western
“It moved the court to direct a verdict in its favor. This was a concession that there was no question in the case kut one of law, which it was the duty of the court to decide. The court adopted the very theory whick appellant asked it to adopt, and took this case from the jury. That it decided the law question adversely to it, ougkt not to put appellant in a position to now assert, as against the ground and theory of his motion, and without any request to have the case sukmitted to the jury, that there was a question of fact for the jury, and that it was error for the court to grant its motion, and decide the case as a question of law only.”
Barnes v. Perine, 12 N. Y. 18; Winchell v. Hicks, 18 N. Y. 565; Leggett v. Hyde, 58 N. Y. 275 (17 Am. Rep. 244); Northam v. International Ins. Co., 61 N. Y. Supp. 45; Ranken v. Donovan, 61 N. Y. Supp. 542; Schreyer v. Jordan, 61 N. Y. Supp. 889.
In the case of Merchants’ Bank v. State Bank, 10 Wall. 637, Justice Swaywe says:
“Tke practice is a wise one. It saves time and costs; it gives tke certainty of applied science to tke results of judicial investigation; it draws clearly tke line wkick separates tke provinces of tke judge and jury, and fixes wliere it kelongs tke responsikility wkick skould ke assumed ky tke court.”
Baltimore & O. S. W. Ry. Co. v. Conoyer, 149 Ind. 524 (48 N. E. 352); Krautman v. Friedman, 57 N. Y. Supp. 84; Hathaway v. East Tennessee V. & G. R. R., 29 Fed. 491.
It is claimed tkat tke court erred in compelling tke counsel for appellant to drop tke examination of tke witness Seymour on tke question of market value, and in using tke language ke did in tke presence of tke jury. On tke re-direct examination of Mr. Seymour, a witness for tke appellant, tke following took place:
*46 “Q. Mr. Seymour, the court asked you, just now, what was the value of that blended lacquer at the cannery; I will ask you what was the market value of the blended lacquer at the cannery in Stanwood at that time?
Mr. Tucker: Up there at the cannery, to a cannery ?
Mr. McCord: No, sir; what was the market value of it in Stanwood, at the cannery, at that time ?
Mr. Tucker: Object, as not proper question, and it is not a question, in this instance, as to what the market value was, etc.
A. It was worth that amount of money if it could be used — a person had use for it.
Q. Was there any market value for it at the cannery at that time ?
A. There would be no market value for it.
Mr. Tucker: We still object, your honor.
Q. Did it have a value to anybody in the open market, engaged in the canning business at that point, or at other points ?
Mr. Tucker: I object—
The Court: If it had in the open market to persons engaged in canning at that point or other points.
Mr. Tucker: As modified by the court, I have no objection.
Q. Was there any sale for it?
The Court: What that lacquer, mixed as it was, would bring if it was owned by a party who was willing to sell it, but was not under obligation to sell it, if it was purchased by one who wanted it, but didn’t have to have it— what would it bring in cash ?
Mr. McCord: Object to the question as incompetent, irrelevant and immaterial, and not properly stated.
The Court: That is, if you know?
A. It would be worth 35 cents a gallon to a canner, if you could find a purchaser for it.
The Court: My question is this — I want to get through with this question of market value: What would it bring in cash if it were bought by a man who wanted .it, but didn’t have to have it, and were sold by a man who was willing to sell it, but didn’t have to sell it — now what would it bring in cash ?
*47 Mr. McCord: I still renew my objection to tbe question.
A. I don’t think you could dispose of it in that condition.
The Court: You think if a man owned it, wanted to sell it, but didn’t have to sell it, and there was a man that wanted to buy it, but didn’t have to buy it, that it would have no cash value?
Mr. McCord: I object to the question.
The Court: You gentlemen have been at this thing around here of market value long enough. I am going to ask the question which I think he ought to answer.
Mr. McCord: I simply want to note an objection to the court’s inquiry that your honor has already put. I object because the question is leading, incompetent, and immaterial, and the witness has already shown that that kind of material has no market value, and it cannot be sold; no cannery has ever bought it.
The Court: Can you answer that question ?
A. I cannot.
The Court: We will pass from that subject, if you want to ask this witness any more questions. This Court and jury have got something to do besides sitting here and have counsel beat around the bush. You may have an exception to that remark — both exceptions.
Mr. McCord: That is all.
Mr. Tucker: That is all.”
It was improper for the court to take the examination of the witness out of the . hands of the attorneys in the manner it did, and to indulge in the remarks about counsel beating a round the bush. There is nothing in the records showing that the character of the examination indulged in by the court was necessary, and certainly the remarks were highly improper. Ordinarily such an examination by the court would have its influence on the minds of the jury, prejudicial to the party calling the witness. This court in the case of State v. Crotts, 22 Wash. 245 (60 Pac. 404) has condemned this practice. The injury in this case was not prejudicial, however. The
We think the judgment of the lower court should be affirmed, and it is so ordered, with costs to respondent on this appeal.
Dunbar, C. J., and Anders, Reavis and Fullerton, JJ. concur.