91 Me. 104 | Me. | 1897
Plaintiff sold one Dubay certain merchandise, half cash, half in thirty days, and delivered the goods without exacting the cash. The goods were shipped from Boston, September 4th, and were received in usual time by Dubay and by him sold to defendant October 1st, and they were replevied during the month of October.
The delivery without exacting the cash payment was evidence that the same had been waived, and if it had, the title passed to Dubay and his vendees. He had ordered goods August 27th, and September 16th, both before and after the bill in question, and they were shipped upon the same terms. From the whole transaction a jury might infer that plaintiff did not intend to insist upon the cash payment. He knew Dubay was a tradesman and would immediately put the purchased goods on sale. Perhaps a waiver may fairly be inferred, but waiver is a matter of fact when it is to be inferred from evidence, for the court says so in Robinson v. Insurance Co., 90 Maine, 389. This case was tried by the sitting justice below, who ruled as a matter of law, there being no conflict of testimony, that defendant was entitled to judgment.
Now this ruling was incorrect, unless the defense can be sustained upon some other ground than waiver, and we think it can. The plaintiff is a merchant in Boston. His vendee a tradesman in Maine. The goods were sold with the knowledge that they were to be put on sale, and the plaintiff allowed the tradesman to expose the goods for sale as if he owned them, and the defendant, an innocent purchaser, bought them relying upon the apparent authority of the tradesman to sell them. Here the plaintiff, by his own inaction, allowed the defendant to assume that the trades
Exceptions overruled.
