Lead Opinion
FROM HILLSBOROUGH CIRCUIT COURT. By the express terms of the contract made by Bishop on behalf of his firm, Elliott was to do nothing but forward the goods by express to their house in Reading, Pa.; and upon doing that he was to receive pay for them at the price already settled and agreed upon. It is said the defendants had a right to examine the goods after their arrival at Reading before paying the bill, and that by marking it "C. O. D." the plaintiff placed a condition upon the delivery which he had no right to impose. What ground is there for such a claim as that? The defendants had already examined the goods once carefully, piece by piece, at Manchester: what occasion or what right had they to go through the same ceremony again? Everything respecting the property was settled by Bishop at Manchester, even to the mode in which it should be forwarded to Reading. Suppose the defendants had been allowed to open the package and examine the goods before paying the sum they had already agreed to pay upon their arrival: what was there in the contract, by which they had already bound themselves to pay the sum of $58.65, to be revised or altered? Their contract was, in legal effect, to pay upon the arrival of the goods, and marking the bill "C. O. D." was no more than a proper and justifiable measure on the part of the plaintiff to secure the performance of this contract by the defendants.
I think the court was right in both cases; and I place my judgment on the ground that the rulings and orders to which exception was taken had no other or greater effect than to carry out and enforce the contract which the parties had made for themselves, according to their obvious understanding and intent.
Concurrence Opinion
It appears from the case that the package of goods sent by express was made up under the eye of the partner Bishop, and Bishop also directed Folsom to do up the bundle and send it by express to the house of Wilson Co., Reading, Pa., and that the bundle was done up and sealed up in the presence of Bishop. It appears, also, that at that time the account was stated, and the balance to be paid agreed upon. Bishop, on behalf of his firm, had accepted the settlement, and had agreed that the cash should be paid on delivery of the goods. Under this agreement Elliott was not obliged to deliver the goods without payment. If he had carried the goods himself to Wilson Co. he might have held them until he was paid, and he might equally well hold them by the express company. The charge for repairing eye-glasses, having been included in this settlement, could not be brought forward in the other suit. The goods having been sent by the order of Bishop, i. e., of Wilson Co., it would seem to be a matter of course that they should pay the expressage; and Elliott, having been obliged to pay it by reason of their refusal, had a right to recover it in his suit.
The fact of the settlement having been found in the case, the evidence of a demand to account, either in writing or verbal, was of no consequence. *Page 320
SMITH, J. When Bishop, one of the firm of Wilson Co., received from Elliott, March 21, 1874, the goods for which they seek to recover, Elliott could then no longer be regarded as their factor or agent, if he was such before. The goods were left with Elliott for the sole purpose of being forwarded to the plaintiffs at Reading; and this he undertook to do according to the directions of Bishop, although they declined to receive them; — the goods, nevertheless, remained the property of the plaintiffs, subject to the attachment afterwards made by Elliott. They would probably be entitled to recover for the item of repairs, $1.50, if the same had not been adjusted by being credited with the assent of Bishop on the bill for the other goods returned the same day.
As to the goods which are the subject-matter of the suit of Elliott v. Wilson Co., Elliott never sustained the relation of factor to them. Bishop agreed to receive them back, and did receive them back on the same day, and the amount to be paid therefor was ascertained and agreed upon. Both lots of goods were sealed up in his presence, and by his directions forwarded to Reading, with the further agreement that the amount which had been found due would then be paid. Wilson Co. attempt to excuse themselves for not receiving the goods, upon the ground that they were not permitted by the express carrier to examine the contents of the bundle before being required to pay for the same. Ordinarily, a consignee will be entitled to a reasonable opportunity to examine the packages brought to him to ascertain whether the goods answer the description of those ordered by him. Lyons v. Hill,
Exceptions overruled.