290 F. 785 | 7th Cir. | 1923
(after stating the facts as above). Reliance for reversal is based principally on the contention that plaintiff should have sued for damages measured by the difference between the contract price and the market value at the- time when defendants refused to receive the goods, instead of predicating the action upon a right to recover the full purchase price on the ground that title had passed to the defendants.
Throughout the trial the court asserted, and acted on the assertion, that defendants’ affidavit of a meritorious defense had the effect, under the -Illinois practice, of admitting the whole of the plaintiff’s case as pleaded in the verified declaration, except the one issue respecting the quality of the goods; and defendants never suggested any intention of amending their affidavit of defense in any respect except a suggestion that they desired to introduce evidence to show that plaintiff had elected a different remedy. Whether the trial court was right or wrong with respect to the Illinois practice and the federal conformity statute (Comp. St. § 1537), the defendants in this court cannot raise an issue which they agreed in the trial court did not exist.
But, apart from all infirmities in the assignments of error, we think that on the undisputed facts in the record the title passed to defendants at New York. Title will pass at such time as the parties intend, and their intent is to be found in their contract and in their acts, if any, which might show an intent not otherwise ascertainable. Kokomo Steel & Wire Co. v. Republic of France (C. C. A.) 268 Fed. 917, 920. In the present case there was no evidence bearing on the question of intent except the contract itself and the testimony show
Again passing questions of practice, we find no defense in defendants’ contention that plaintiff could not maintain this suit on account of having elected to pursue an inconsistent remedy. When the plaintiff’s New York office was notified of defendants’ refusal to take up the draft, the plaintiff wired that unless the draft was taken up at once it would sell the goods and sue the defendants for damages. This telegram was not a necessary step in pursuing any sort of remedy.
Other assignments do not, in our judgment, merit any especial notice.
The judgment is affirmed.