Rossman v. Townsend

17 Wis. 95 | Wis. | 1863

By the Court,

Paine, J.

This action was brought to recover tbe price of a quantity of flour which, it was claimed, belonged to tbe plaintiff and bad been sold by tbe defendant. It appeared on tbe trial that Sperling & Co. had a contract with tbe defendant, by which tbe latter was to ship flour for them, and make certain advances at tbe time it was delivered. They made arrangements with a number of farmers, and among others with tbe plaintiff, to deliver to tbe defendant flour to be shipped on their cpntract. Tbe plaintiff delivered a quantity, took a warehouse receipt acknowledging that tbe flour bad been received from Sperling, and gave a receipt for the advance, signed by him “ for Sperling & Co.”

Tbe defendant’s counsel asked tbe court to instruct tbe jury that “ unless tbe defendant knew that tbe flour covered by the receipts upon which he advanced money belonged to tbe plaintiff at tbe time tbe advances were made, tbe plaintiff cannot recover the balance in this action.” This tbe court refused to give, which we think was error. If tbe defendant received this flour on the contract with Sperling & Co., and the plaintiff made arrangements with them to deliver it on their contract, without making any arrangement whatever with the defendant on his own account, then the effect of the transaction, so far as the defendant was concerned, was that the plaintiff sold the flour to Sperling & Co., and allowed them to sell it to the defendant as their own. In that case there was no privity of contract between the plaintiff and defendant, and the plaintiff must look to Sperling & Co., with whom he dealt.

Suppose I contract with a man to furnish for me materials for a bouse, agreeing to make certain advances as they are delivered. He informs some third party, who has such materials as are required, that he has such a contract, and tells him that he may deliver the materials on it, if he chooses, and receive the advance. He does so, acting in the name of the contract- or. Can he then turn round and sue me for the price ? Clearly not. A man cannot be made debtor to any indefinite number, with whom he never contracted, by their making arrangements with one with whom he has contracted to deliver property on his ^contract. The legal effect of such a transaction is a sale by them to the one for whom they deliver, and not to .the one to whom the delivery is made. This seems to be the precise question presented by the instruction asked, and it should have been given.

The judgment is reversed, with costs, and a new trial ordered.