McLaughlin v. Marston

78 Wis. 670 | Wis. | 1891

Taylor, J.

After reading all the evidence in the record, it seems to ns that the contention of the defendants that they had a continuing agreement with the plaintiff at the time this coffee was ordered that all coffee bought of him should be delivered to the defendants at La Crosse, is, to some extent at least, supported by such evidence; and, this being so, it seems to us that the learned circuit judge erred in directing a verdict for the value of the ten cases of coffee in favor of the plaintiff. If the agreement was as defendants contended, under the standing arrangement the plaintiff must have understood that the order did not justify him in delivering it to defendants in Chicago, and putting them to the risks of transportation to La Crosse, and that the prepayment of the freight on the coffee was not an equivalent to a delivery in La Crosse.

It is evident that the learned circuit judge had grave doubts as to how the order in this instance ought to be construed. He says, among other things, before directing a verdict for the plaintiff: “ Is there any reason to think that Mr. Marston thought of anything except he got them here freight free? "Was not that what he expected? It is true the words may mean more. The word ‘ delivery ’ may mean more than that. Habitual dealing throws no light on this question whether they considered the delivery to be complete so far as to change the title, and that is the question in this case.” The learned judge then says that his impression is that “the contract made by this order ought to govern. I am inclined to think that was all that was meant by the contract that was made with Mr. Harries.” The learned judge then takes from the jury the question as to what the contract was, as understood by the parties at the time, aDd directs a verdict for the plaintiff.

The learned judge evidently did not intend to hold that the order alone created a written contract between the parties as to the place of delivery, which could not be explained by parol evidence, or as to the price of the coffee, but he seems to have come to the conclusion that as, in the absence of any proof except the written order, the law would presume that the delivery to a carrier at the place of business of the vendor, consigned to the purchaser at his place of business, would be a delivery to him, there was not evidence enough given on the part of the defendants to justify a jury in finding that any other place of delivery was intended by the parties. In this view of the case we think the learned judge invaded the province of the jury. It was for the jury, and not the court, to say, under all the evidence in the case, where the delivery of the coffee was to be made. The defendants’ claim that the coffee was not theirs by a delivery to the carrier at Chicago consigned to them, was made immediately Upon hearing that a part of the coffee had been attached there as their property, and they have persisted in that claim ever since; and we think thére is considerable evidence in the case tending to prove the contention of the defendants that all purchases of coffee made by the defendants from the plaintiff were to be delivered at La Crosse, and not at any other place, and that the order in this particular case, asking the plaintiff to send them the coffee in question, is in no way inconsistent with an agreement that the plaintiff should deliver it at La Crosse.

The evidence introduced by the defendants tending to show that in all their dealings with the plaintiff the delivery was made at La Crosse, and that there was a continuing contract to that effect when this order was made, was admitted by the learned circuit judge as competent evidence in the case. That such evidence was competent is, we think, well supported by reason and authority. Bishop, in his work on Contracts, says: “ When a custom is shown to have existed between the parties as to dealings between them, then the new transaction is prima facie presumed to be on the same basis as the former ones.” Secs. 456-458.. The rule as to when a delivery to a carrier constitutes a delivery to the vendee, is thus stated by Benjamin in his work on Sales: “ Where the vendor is bound to send the goods to the purchaser, the rule is well established that delivery to a common carrier ... is a delivery to the purchaser himself. If, however, the vendor should sell goods, undertaking to make the delivery himself at a distant place, thus assuming the risks of the carriage, the carrier is the vendor’s agent.” 2 Benj. Sales, sec. 1040; Devine v. Edwards, 101 Ill. 138. “ If the thing agreed to be sold is to be sent by the vendor to the vendee, it is necessary to the perfection of the contract that it should be delivered to the purchaser or his agent.” The Venus, 8 Crunch, 253, 257; Comm. v. Greenfield, 121 Mass. 40. In Suit v. Woodhall, 113 Mass. 391, 394, the court say: “ There was evidence-from which the jury might have found that the plaintiffs [the vendors] were to pay the freight, and the defendants asked the court to rule that, if the plaintiffs were to deliver the liquors at Lawrence, the sales were made at Lawrence. This instruction should have been given. Delivery to the carrier was a delivery to the defendants, if there was no agreement to the contrary; but if the parties agreed that the goods were to be delivered at Lawrence, it would not be a completed sale until delivery, and the laws of this state would apply to it.” In this case the court seems to hold that the proof that the vendor was to pay the freight on the goods from the vendor’s place of business to the place of business of the vendee, was some evidence tending to prove an agreement on the part of the vendor to deliver the goods sold to the vendee at his place of business. In that case, if the sale was completed at Lawrence, the sale was void; but if completed by the delivery to a carrier in Kentucky, it would be valid, the article sold in that case being spirituous liquors. See, also, Mand v. Trail, 92 Ind. 521; Pierson n. Hoag, 47 Barb. 243; Underhill v. Muskegon B. Co. 40 Mich. 660.

In the case at bar it was therefore a material question whether the contract between the parties was for a delivery by the vendor to the vendees at La Crosse. If such was the contract, then the coffee attached by the supposed creditor of the defendants was not the property of the defendants, and its attachment was no excuse for its non-delivery by the plaintiff to the defendants'at La Crosse. That the mere order to send the coffee, specifying the quality only and mentioning no place of delivery or price, is not such a contract in writing between the parties in regard to the coffee as excludes all explanation by parol or other evidence as to what the contract between the parties as to its delivery was, is also well settled by the authorities, and was recognized by the learned circuit judge on the trial. In addition to the authorities above cited, see Boynton F. Co. v. Clarh, 42 Minn. 335; Beach v. R. & D. B. R. Co. 37 N. Y. 457; 1 Greenl. Ev. § 282, and cases cited. As there was evidence introduced in this case from which the jury might rightfully have found that the agreement was to deliver the coffee to the defendants at La Crosse, it was error for the court to direct a verdict for the plaintiff.

By the Court.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.