204 Wis. 376 | Wis. | 1931
Lead Opinion
It is the contention of the plaintiff here that under the evidence it was a jury question as to whether or not the plaintiff made unconditional delivery. On the part of the defendant it is contended: (1st) that unconditional delivery was made and the title passed to Torrance; (2d) that the defendant is protected as a purchaser-; and (3d) that the plaintiff has waived any right to the possession of the goods.
“We would appreciate your co-operation in mailing a bank draft made out in favor of the Ford Motor Company and freight check in our favor to us Tuesday July 1 without fail.”
There is not the slightest intimation in this letter that the goods had not been unconditionally delivered. The letter indicates, also that the plaintiff had not settled with the Ford Motor Company, else the draft should have been made payable to plaintiff. Plaintiff says: “This morning we delivered to you a truckload of Ford cars.” This indicates an unconditional delivery; no intimation that if payment is not made possession will be reclaimed. . While the fact that Torrance sold the cars to the defendant at cost without profit might justify the suspicion that he was taking advantage of the
The legal relation of the plaintiff to the transaction in question has three aspects: (1st) It was a private carrier entitled to retain possession of the goods until the carriage charges were paid. (2d) It was a bailee of the goods under contract to deliver the same to the notify party at Superior. (3d) It was the agent of the Ford Motor Company for the collection of the amount due. As a carrier it waived its lien by transferring possession of the goods to Torrance without requiring prepayment of the freight charges. Wisconsin Brick Co. v. National Surety Co. 164 Wis. 585, 160 N. W. 1044; 4 Ruling Case Law, p. 871, § 325, and cases cited. Once waived the right is not restored even though the goods again come into the possession of the carrier. Hale v. Barrett, 26 Ill. 195; Vanderbilt v. Planters' O. M. & G. Co. 140 Miss. 427, 106 South. 14. In this respect there appears to be no difference in the law with respect to common and private carriers.
Under the peculiar arrangement provided for by the contract between Torrance and the Ford Motor Company, Torrance was required to assume risks of transportation, and therefore the contract of carriage was made by the Ford Motor Company on behalf of the Torrance Motor Company and ratified by Torrance when he signed the receipt set out in the statement of facts. This was in the form of a proposal by the plaintiff to Torrance. Certainly when this contract was signed by Torrance and possession of the goods delivered to him, all the rights of the plaintiff to the possession of the property as bailee ceased according to the express language of the agreement.
As agent of the Ford Motor Company, as appears from the documents, it was the duty of the plaintiff to retain possession of the goods until payment of the purchase price was
In Piotrowski v. Czerwinski, 138 Wis. 396, 120 N. W. 268, it was held that an agent, in that case an attorney, could not maintain an action upon notes for the benefit of his principal. A promissory note being merely one form of contract,
By the Court. — Judgment affirmed.
Dissenting Opinion
(dissenting). It seems to be conceded that it was not the intention of the plaintiff to make unconditional delivery of the cars in the absence of the payment of the purchase price. But it is held as a matter of law that Torrance believed that an unconditional delivery of the cars was being made. I am of the opinion that whether he so believed, or whether he had any reason for so believing, presented a jury question.
The plaintiff owed to the Ford Motor Company the duty of making collection of the invoice. If it made unconditional delivery of the cars without collecting the amount of the invoice, it must have been with the intent and design of extending to Torrance credit to the amount of the invoice. This upon its face seems so unlikely as to require close scrutiny of the record to determine what Torrance believed, or what he was justified in believing, from all the facts and circumstances surrounding the situation. Taylor, the employee or agent of the plaintiff, who brought the cars to Superior, arrived there at six o’clock Monday morning, before Torrance arrived at his place of business. Taylor called him up at his home and he came down to his garage. Taylor told Torrance that the amount of the Ford draft would be wired Monday morning, and that he would leave the cars if he, Torrance, would look after that. Torrance
It is a rule supported by the weight of authority that a promise to do that which the promisor has no present intention of performing, is fraud. 12 Ruling Case Law, p. 261. While this doctrine has neither been adopted nor repudiated in this state, it found rather favorable expression in Jeleniewski v. Eck, 175 Wis. 497, at p. 499, 185 N. W. 540.
If when Torrance promised to take care of the invoice he had then no intention of so doing, there is much reason to say that he obtained possession of the cars by his own fraud. That his subsequent conduct evidenced such a disposition at the time he receipted for the cars, is conceded in the opinion. It is my own belief that if he did not intend to pay the amount of the invoice when he so promised, he was guilty of fraud, and all the circumstances of the case justify a jury in inferring such a fraudulent intent. But as the case was not tried on that theory, and as the point is not relied on for a recovery, I pay no further attention to it.
The real question is whether the record justifies a holding as a matter of law that Torrance believed or had reason to believe that an unconditional delivery of the cars was intended. As bearin'g upon this question, we first must note the fact that under his contract with the Ford Motor Company it'was provided that title to the cars should remain in the latter until paid for. He knew that Madden' Bros, was required to make collection of the purchase price for the Ford Company. He knew that Madden Bros, had no prior business relations with him and knew nothing as to whether he was deserving of credit. He knew that Taylor was a mere agent of Madden Bros.'/ and he was at least put upon his inquiry to ascertain whether Taylor was authorized to extend him credit in behalf of Madden Bros. As a matter
The letter written by the plaintiff to Torrance on June 30th in which it referred to the fact that “this morning we delivered to you a truckload of Ford cars” is subject to the same construction. The word “delivered” is a proper word to indicate either delivery of physical possession or transfer of legal title. Under all the circumstances it seems plain that the plaintiff in this letter used the word “delivered” to simply indicate a delivery of the physical possession of the cars.
For these reasons I dissent.