177 Ind. 344 | Ind. | 1912
Appellee and his copartner, Houck, by a complaint in five paragraphs, instituted this action against appellant as a common carrier. The first and second paragraphs alleged the ownership of two carloads of corn, of 992 and 974 bushels, respectively, the entry into a written contract with appellant, a common carrier—which contract is made an exhibit of each paragraph—for the shipment of the corn from Converse, Indiana, to Pittsburgh, Pennsylvania, consigned to their order, with written directions in the bill of lading to notify Daniel McCaffrey & Sons, their agents, and paid the freight charges; that the corn arrived at appellant’s Manchester yards, near Pittsburgh, November 15, 1905, cool and sweet and in good condition; that said agents on said last-mentioned date sold both cars of corn to the Pittsburgh Union Stock-Yards at fifty-two cents a bushel, and that was its value; that appellant carelessly and negligently failed and neglected to deliver the corn until November 21, 1905, and that during the period from November 15, 1905, to November 21, 1905, by reason of said negligence, the corn heated and spoiled, so that the value thereof was reduced to twenty cents a bushel, and said agents were compelled to sell it at that price. Performance of all the conditions of the contract on appellee’s part, including making claim for the loss within thirty days, is alleged, and damages are demanded on each car shipped November 8.
The third paragraph is the same, except that it alleges shipment November 14, its arrival cool and sweet at the Manchester yards on November 15, sale at fifty-two cents a bushel that day, negligent failure to deliver until November
The fourth paragraph counts on the two shipments of November 8 as made without written,contract, and alleges the-agreement of appellant to transport and deliver the corn to appellee’s order in the city of Pittsburgh, but carelessly and negligently held it in or near that city six days, during which time the corn spoiled.
The fifth paragraph is the same as the fourth, except it counts on the shipment of November 14, and alleges receipt at the Manchester yards on November 20. The fourth and fifth paragraphs are claimed to be based on §3918 Burns 1908, Acts 1905 p. 58.
The cause was submitted to a jury on an answer of general denial, and at the close of appellee’s evidence, appellant demurred to the evidence, and it was agreed that if the demurrer should be overruled the court “may assess the damages on the evidence in the demurrer,” without recalling the jury. Appellee joined in the demurrer, which was overruled, and the court assessed the damages, and, over motion for a new trial, judgment was rendered for appellee, whose partner Houck had died pending the suit, as was disclosed by a supplemental complaint.
The errors assigned and not waived are on the rulings on the demurrers to each paragraph of the complaint, in overruling the demurrer to the evidence, and in overruling the motion for a new trial.
If the allegation quoted stood alone, or without anything in qualification, the court would doubtless be required to treat it as amounting to an allegation of a consummated sale. The allegation in the first, second and third paragraphs is, however, “that said corn was the property of these plaintiffs, and their said agents sold the said corn on said day to the Pittsburgh Union Stock-Yards at fifty-two cents per bushel. That said corn was then and there of the value of fifty-two cents per bushel. That defendant company negligently and carelessly neglected and refused to deliver said corn to said purchaser until the 21st day of Nov.,” in one case, and in the other, “until the 29th day of Nov., 1905. That during said period from Nov. 15th to Nov. 21,” in one case and “from Nov. 20 to Nov. 29” 'in the other, “the said corn heated and spoiled by reason of defendant’s said negligence, so that the value thereof was no more than twenty cents per bushel,” as to two ears, and “twenty-five cents per bushel” as to one car, “which was the best and highest price they [plaintiffs] could obtain therefor, and they were compelled to, and did sell for those prices.”
Taking the allegations together, they did not allege an executed sale, or a “bargain and sale” at common law, but an executory contract, or contract to sell.
Into this allegation must be read the proposition of law of the right of inspection, and the right of refusal of the contemplated buyer, and its right to reject that which it had not purchased.
Stated reversely: Suppose the stock-yards company had sued defendant and his copartner for a breach of contract to deliver corn purchased, could the latter have successfully defended the suit by showing that said company agreed to take so much corn of such and such a quality at so much a bushel? Would he not have been compelled to show that he had delivered it, or stood ready to deliver, and that it was of the quality agreed on?
The court cannot judicially know anything about the situation of the Manchester yards, or what relation, if any, they have to a contract to deliver in Pittsburgh.
The allegation of the complaint is that the corn arrived ‘ ‘ at the Manchester yards near said city of Pittsburgh. ’ ’ On the face of the record, that is a showing that the corn was in transit. A sale and assignment of the bill of lading might have been made in transit; so the allegation is, in effect, of a sale while at the Manchester yards, or while in transit, delivery to be made at Pittsburgh, and impliedly subject to the right of inspection. In the absence of anything to the contrary, a sale while the corn was at the Manchester yards was not a delivery at Pittsburgh, with a contract to deliver there to appellee, to whom he or his agents might direct in consummation of the contract of carriage, and the allegation that it was sold, coupled with the other allegations, shows no
It may be conceded that the allegation that they had sold the corn is not an apt one, but, taken in connection with the other allegations, a contract to sell is shown, and not an executed sale.
A present acceptance is not shown, because coupled with the allegation is that of failure to deliver until the corn was spoiled, showing that delivery was to be made by appellee. Clearly there is not a showing of the meeting of minds, or understanding, or intention or agreement that title passed at the Manchester yards.
The right of inspection, unless waived, is an absolute one. 2 Mechem, Sales §§1375, 1376, 1211-1214; Gandy v. Seymour, etc., Stave Co. (1912), 50 Ind. App —, 90 N. E. 915; Oil Well Sup. Co. v. Watson (1907), 168 Ind. 603, 80 N. E. 157, 15 L. R. A. (N. S.) 868; Farmers Nat. Bank v. Coyner (1909), 44 Ind. App. 335, 88 N. E. 856; Warner v. Warner (1903), 30 Ind. App. 578, 66 N. E. 760; Western Construction Co. v. Romona, etc., Stone Co. (1908), 41 Ind. App. 229, 80 N. E. 856; Gatling v. Newell (1857), 9 Ind. 572; Moffatt v. Green (1857), 9 Ind. 198; Brand v. Weir (1899), 57 N. Y. Supp. 731, 27 Misc. Rep. 212; Sloan v. Carolina Cent. R. Co. (1900), 126 N. C. 487, 36 S. E. 21; Lyons & Co. v. Bill & Co. (1865), 46 N. H. 49, 88 Am. Dec. 189; Bach v. Levy (1886), 101 N. Y. 511, 5 N. E. 345; Swett v. Shumway (1869), 102 Mass. 365, 3 Am. Rep. 471; Hight v. Bacon (1878), 126 Mass. 10, 30 Am. Rep. 639; Fogel v. Brubaker (1888), 122 Pa. St. 7, 15 Atl. 692; Warner v. Arctic Ice Co. (1883), 74 Me. 475; Hood v. Bloch Bros. (1886), 29
If the allegation could be treated as constituting a passing of title, conditioned upon inspection, and the quality was not as agreed, the contract could not be enforced against the alleged purchaser, and the damages would result to appellees, not to the stock-yards company. If the stock-yards company had brought suit, it would have been at once confronted with the fact that the corn was consigned to appellees, and was not accepted by or delivered to the stock-yards company.
The use of the word “sold” does not necessarily imply a. change of title. Anderson v. Read (1887), 106 N. Y. 333, 13 N. E. 292; Gallup v. Sterling (1898), 49 N. Y. Supp. 942; 22 Misc. Rep. 672; Blackwood v. Cutting Pack. Co. (1888), 76 Cal. 212, 12 Pac. 493, 9 Am. St. 199; Shainwald, Buckbee & Co. v. Cady (1891), 92 Cal. 83, 28 Pac. 101; Brooks v. Libby (1896), 89 Me. 151, 36 Atl. 66; Kilpatrick-Koch, etc., Co. v. Box (1896), 13 Utah 494, 45 Pac. 629.
7. Jurisdiction is sought to be ousted by the claim that the state court had no jurisdiction of the cause, and that jurisdiction is wholly in the interstate commerce commission, or in the federal courts, and reliance is placed on McNeil v. Southern R. Co. (1906), 202 U. S. 543, 26 Sup. Ct. 722, 50 L. Ed. 1142. We are not able to perceive the relevancy of that case. The point has been directly
The provision is printed in small type among a great many other conditions of the bill of lading, and was doubtless overlooked by the court and the parties, as there was no objection made to the evidence as to the value at Pittsburgh, and the question seems to have been first raised here on the motion for a new trial as to the insufficiency of the evidence and excessive damages, but there having been no objection
It is elementary that no error can be taken advantage of on appeal from incompetent evidence, unless the attention of the court below has been called to it, and an opportunity given to correct it. Indianapolis St. R. Co. v. Ray (1906), 167 Ind. 236, 78 N. E. 978; City of South Bend v. Turner (1901), 156 Ind. 418, 60 N. E. 271, 83 Am. St. 200, 54 L. R. A. 396; Barner v. Bayless (1893), 134 Ind. 600, 33 N. E. 907, 34 N. E. 502; Graves v. State (1889), 121 Ind. 357, 23 N. E. 155; Stockwell v. State, ex rel. (1885), 101 Ind. 1; Riehl v. Evansville Foundry Assn. (1885), 104 Ind. 70, 3 N. E. 633; Fitzpatrick v. Papa (1883), 89 Ind. 17; Shoemaker v. Williamson (1901), 156 Ind. 384, 59 N. E. 1051; Smith v. Smith (1886), 106 Ind. 43, 45, 5 N. E. 411; Kinney v. Dodge (1885), 101 Ind. 573.
The complaint appears to have been drawn on the theory of the difference in values at Pittsburgh, and the evidence given on that theory without objection. Just what interpretation should be given the agreement of the parties is difficult "to determine. In view of the evidence being received without objection, it is susceptible of the construction that the parties treated Pittsburgh as the place for determining values. If there had been an objection, the evidence would have been improperly admitted.
Without this evidence, there was no evidence to support appellee’s claim under .the contract, and he and the court
On the other hand, appellant may have had in mind that there was no basis for assessing damages on the demurrer to the evidence, but as appellant’s real ground of defense was that appellee was not the owner, and had no right to maintain the action, and without the court’s attention apparently having been directed to the matter, it does not seem to us to justify this court’s interference at this late day.
When the corn was delivered at the stock-yards, it was rejected, because not what had been contracted to be sold. Chicago, etc., R. Co. v. Reyman (1906), 166 Ind. 278, 76 N. E. 970; Rastetter v. Reynolds (1903), 160 Ind. 133, 66 N. E. 612; Morningstar v. Cunningham (1887), 110 Ind. 328, 11 N. E. 593, 59 Am. Rep. 211; Mand v. Trail (1884), 92 Ind. 521, 47 Am. Rep. 163; Pittsburgh, etc., R. Co. v. Nash (1873), 43 Ind. 423.
No reversible error is made to appear, and the judgment is affirmed.
Note.—Reported in 98 N. E. 295. See, also, under (1) 6 Cyc. 448; (2) 35 Cyc. 274; (3) 6 Cyc. 448, 515; (4) 35 Cyc. 275; (5) 6 Cyc. 442; (6) 6 Cyc. 448; (7) 11 Cyc. 996; (8) 6 Cyc. 449; 11 Am. St. 360; (9) 2 Cyc. 693; (10) 2 Cyc. 670; (11) 12 Cyc. 1061; (12) Cyc. Anno. (1913) 707. For authorities on the question of the liability of a connecting carrier for loss beyond its own line, see 31 L. R. A. (N. S.) 1.