17 Del. 220 | Del. Super. Ct. | 1898
We think the testimony is not admissible under the rule of the Court referred to.
charging the jhry :
Gentlemen of the jury :—The Port Kennedy Slag Works, the plaintiff in this action, seeks to recover from Frank A. Mitchell, the defendant, for five hundred and twenty-four tons of cement slag at the price of $1.50 per ton, making $786.00 with interest from November 1, 1896, amounting to $62.61, and for storage on four hundred and fifty-one tons of the slag, amounting to $126.28, making the aggregate claim $974.89.
The defendant, on the other hand, avers that the slag was not only sold by sample, but was expressly subject also to the approval of parties with whom he had a contract in the City of Washington for slag for the purpose of making cement. That the slag was not according to sample, but was dirty and unfit for use, and was rejected for that cause by the Washington contractor.
What was exactly the contract is the precise question for your ascertainment, and this 3>-ou are to determine from the evidence.
If you are satisfied that the slag was sold by sample, and also subject to the approval of the Washington contractor, and that it turned out to be not according to sample, and was rightfully rejected by the contractor, the plaintiff cannot recover ; because the plaintiff has not fulfilled its contract.'
On the other hand, should you believe that the slag was sold to the defendant by sample, which sample he examined and duly approved, and that the slag was like the sample so approved, and not subject to the approval of the Washington contractor, then your verdict should be for the plaintiff. The plaintiff would not be bound by the terms of any contract made between Mitchell and the Washington parties, unless the Washington contract was made a part of this contract between the plaintiff and the defendant.
In a contract of sale, where a particular quantity of goods is separated or distinctly set apart and designated b)' agreement as the property sold, to be delivered upon the order of the buyer, the title thereby becomes vested in the buyer, and it becomes his
Should you believe that the slag was in quality according to sample and not subject to the Washington contract, and that three car-loads were delivered on cars at Port Kennedy on order of the defendant, the plaintiff would be entitled to recover for said three car-loads as for goods sold and delivered; and also to recover for the residue of the slag, the delivery of which was forbidden or stopped by the defendant, as for goods bargained and sold. In the latter case also, the plaintiff would be entitled to recover such reasonable sum for storage for said residue, as would be just, after such refusal to permit delivery and after notice that storage would be charged.
Where in any case the evidence is conflicting, it is the duty of the jury to reconcile that evidence, if possible. If they are unable so to reconcile it, they should be controlled by the evidence of that party which under all the circumstances is most entitled to their credit; considering therein the number of witnesses, their respective apparent intelligence, truthfulness, fairness, opportunity for obtaining correct information of the matters of which they speak, and every other element that tends to satisfy your minds that such evidence discloses the truth in the cause.
There is really little, if any, conflict between the parties as to the law governing this subject. The case turns almost exclusively upon a question of fact as to what the contract was. This depends upon the evidence, which is exclusively a matter for your consideration, and under that evidence you will find your verdict, and say whether the plaintiff is entitled to recover in this action, and if so, what amount.
Verdict for defendant.
