101 P. 966 | Mont. | 1909
delivered the opinion of the court.
This action originated in a justice’s court of Silver Bow county, and was brought to recover from King & Lowrey, copartners, $182.18, balance alleged to be due on account. The complaint alleges: That the plaintiff, at Butte, Montana, on the-day of October, 1905, sold to defendants, and thereafter delivered to, them, at their request, f. o. b. St. Louis, Mo., two barrels of Meadeville rye whisky, one barrel of California sherry, and one barrel of port wine'; that defendants agreed to pay for the same the sum of $258.31 on or about January 9, 1906, but that they have not paid any part of said sum, except $76.13, leaving the said balance unpaid. The answer denies generally all the allegations of the complaint. In the justice’s court plaintiff
The assignment is made in appellant’s brief that the evidence is insufficient to sustain the verdict, but in the portion of it devoted to the argument no reference is made to the assignment. "We assume, therefore, that this assignment was abandoned, and notice those only upon which appellant relies.
1. Assuming that the evidence conclusively shows that goods of the kind and quality ordered were delivered to the common carrier at St. Louis, appellant insists that the title then passed to King & Lowrey, and that any loss or damage due to subsequent change in their condition must be borne by the latter. The rule contended for by appellant is elementary. “The effect of the delivery to the carrier under proper circumstances is thus not only to transfer the title, but also to fix ordinarily the time and place at which the title passes. With the title go the risk and liability, and the seller may recover the price though the goods never arrived, or, without his fault, are injured on the way.” (1 Mechem on Sales, sec. 739.) In Wheelhouse v. Parr, 141 Mass. 593, 6 N. E. 787, the rule is stated thus: “When goods ordered and contracted for are not directly delivered to the purchaser, but are to be sent to him by the vendor, and the vendor delivers them to the carrier, to be transported in the mode agreed on by the parties or directed by the purchaser, or when no agreement is made or direction given, to be transported in the usual mode, or when the purchaser, being informed of the mode of transportation, assents to it, or when there have been previous sales of other goods, to the transportation of which in a .similar manner the purchaser has not objected, the goods, when delivered to the carrier, are at the risk of the purchaser, and the property is deemed to be vested in
2. The evidence on the part of the plaintiff tended to show that the shipment was strictly in compliance with the order. Defendant, in order to rebut this prima facie case, was permitted, over plaintiff’s objection, to introduce evidence tending to show that the barrels containing the whisky were received apparently in the same condition as when shipped; that they were put into defendants’ cellar and properly stored; that the cellar was kept locked so that no person but the proprietors, King and Lowrey, and their employees, could have access to them; that, after they remained there long enough to allow the whisky to get into condition for use, they were opened, whereupon it was found that they contained an adulterated liquor of a quality entirely different from Meadeville rye whisky; and that the adulteration could not have been accomplished except at some place where there were facilities for that purpose. This evidence also tended to show that the barrels had not been tampered with after they reached the cellar. All of it was objected to on the ground that it was immaterial and irrelevant, in that it did not tend in any way to show that the plaintiff had not shipped the quality of whisky ordered.- The objection was properly overruled. The quality of the whisky when it was received was evidence of its quality at the time of its shipment; the proof on this point being materially aided by the fact that the barrels had not thereafter been tampered with while in charge of the carrier or after their arrival'in Butte, as well, as by the additional fact that the contents had not been adulterated as they were found to have been after their receipt in Butte.
4. The court, among other instructions of like import, submitted the following: “(3) the court instructs the jury, as a matter of law, that where goods are delivered to a common carrier for transportation over its line, and the contract of purchase is silent as to the person or mode by which the goods are to be sent, a delivery by' the vendor to a common carrier in the usual and ordinary course of business transfers the property to the vendee.” It is argued that, since it appeared that a delivery of the goods ordered by King & Lowrey was made to the carrier, the said bailee, in accordance with the understanding of the parties, the jury could not properly have found for the defendants at all under this instruction, and hence that the verdict was contrary to the law as declared by the court. This contention is without merit. As already pointed out, while the carrier was the agent of the defendants to accept delivery of the goods, it was not their agent to approve the quality of them. The contract remained so far executory, after delivery to the carrier, that the defendants were not bound by it until they had received goods of the quality and description ordered. Whether the plaintiff shipped such goods was the only question at issue. Under the instruction the jury could have found the issue either way. Their verdict was therefore not contrary to the law.
5. Contention is made that the answer of the defendants, being a denial only, was not sufficient to admit evidence tending to show that the plaintiff had not performed the contract by shipping the goods ordered. The point made is that, if plaintiff failed to ship goods of the quality ordered, it was guilty of a breach of warranty, and that defendants could not rely upon
The judgment and order are affirmed.
Affirmed.