POPE V. ALLIS
| Decision Date | 09 November 1885 |
| Citation | 115 U. S. 363 |
| Court | U.S. Supreme Court |
Where the complaint alleged a contract for delivery of iron at one place, and the answer a contract for delivery at a different place, evidence offered by the plaintiff which tended to support the averment of the answer was properly admitted under § 2869 Rev.Stat. of Wisconsin, the defendants having failed at the trial to prove that they were misled by the variance between the complaint and the proof.
Averments made under oath in a pleading in an action at law are competent evidence in another suit against the party making them, and the fact that the averments are made on information and belief goes only to their weight, and not to their admissibility as evidence.
Where goods of a specified quality, not in existence or ascertained, are sold and the seller undertakes to ship them to a distant buyer, and, when they are made or ascertained, delivers them to a carrier for the buyer, the latter, on their arrival, has the right, if they are not of the quality required by the contract, to reject them and rescind the sale, and if he has paid for them to recover back the price in a suit against the seller.
Edward P. Allis, the defendant in error, was the plaintiff in the circuit court. He brought his suit to recover from the
defendants Thomas J. Pope and James E. Pope, now the plaintiffs in error, the sum of ,840, the price of 500 tons of pig iron which he alleged he had bought from them and paid for, but which he refused to accept because it was not of the quality which the defendants had agreed to furnish. The plaintiff also demanded ,750 freight on the iron, which he alleged he had paid.
The facts appearing upon the record were as follows:
The plaintiff carried on the business of an iron founder in Milwaukee, Wisconsin, and the defendants were brokers in iron in the City of New York. In the month of January, 1880, by correspondence carried on by mail and telegraph, the defendants agreed to sell and deliver to the plaintiff 500 tons of No. 1 extra American and 300 tons No. 1 extra Glengarnock (Scotch) pig iron. The American iron was to be delivered on the cars at the furnace bank at Coplay, Pennsylvania, and the Scotch at the yard of the defendants in New York. By a subsequent correspondence between the plaintiff and the defendants it fairly appeared that the latter agreed to ship the iron for the plaintiff at Elizabethport, New Jersey. It was to be shipped as early in the spring as cheap freights could be had, consigned to the National Exchange Bank at Milwaukee, which, in behalf of the plaintiff, agreed to pay for the iron on receipt of the bills of lading. That quantity of American iron was landed at Milwaukee and delivered to the plaintiff about July 15. Before its arrival at Milwaukee, the plaintiff had not only paid for the iron, but also the freight from Coplay to Milwaukee. Soon after the arrival in Milwaukee, the plaintiff examined the 500 tons American iron, to which solely the controversy in this case referred, and refused to accept it on the ground that it was not of the grade called for by the contract, and at once gave the defendants notice of the fact, and that he held the iron subject to their order, and brought this suit to recover the price of the iron and the freight thereon.
The defenses relied on to defeat the action were (1) that the iron delivered by the defendants to the plaintiff was No. 1 extra American iron, and was of the kind and quality required by the contract, and (2) that, the title having passed to the
plaintiff when the iron was shipped to him at Elizabethport, he could not afterwards rescind the contract and sue for the price of the iron and the freight which he had paid, but must sue for a breach of the warranty.
It was conceded upon the trial that if the plaintiff was entitled to recover at all, his recovery should be for ,315.40. The defendants pleaded a counterclaim for ,311, which was admitted by the plaintiff. The jury returned a verdict for the plaintiff for ,513.11, for which sum and costs the court rendered a judgment against the defendants. This writ of error brings that judgment under review.
MR. JUSTICE WOODS delivered the opinion of the Court. He stated the facts in the language above reported, and continued:
1. The first assignment of error relates to nine exceptions to the admission of evidence by the court against the objection of the plaintiffs in error. The complaint having alleged that the contract between the parties was for the delivery of the iron at Milwaukee, the plaintiffs in error objected to the introduction of evidence offered by the defendant in error which tended to show a contract for the delivery of the iron at Copley or Elizabethport, because the proof offered did not support the averments of the complaint, and the court having overruled their objections and admitted the evidence, they now contend that the judgment should for that reason be reversed.
But it is clear that, under § 2669 of the Revised Statutes of Wisconsin, which constitutes a rule for the guidance of the federal courts in that state, this assignment of error is not well taken. The section mentioned provides:
The answer of the plaintiffs in error denied that the contract provided for the delivery of the iron in Milwaukee, and averred
that the iron was to be delivered at Coplay. We do not think that evidence offered by the defendant in error, which tended to establish the averments of the answer, rather than of the complaint, was such a variance as could mislead the plaintiffs in error to their prejudice in maintaining their defense upon the merits; but if they had been really misled, they should have proved the fact to the satisfaction of the court upon the trial. Having neglected to do this, they cannot now complain. It is clear that under the statute of Wisconsin, the plaintiffs in error had no just ground of exception to the admission of the evidence objected to. Bonner v. Home Insurance Co., 13 Wis. 677; Leopold v. Van Kirk, 29 Wis. 553; Giffert v. West, 33 Wis. 617. These cases show that the discrepancy between the pleading and the proof was a variance within the meaning of the statute of Wisconsin, and that the section cited is applicable to the question in hand.
2. The next contention of the plaintiffs in error is that evidence was improperly admitted by the circuit court to show that the iron landed at Milwaukee was not of the quality required by the contract, the defendant in error not having shown or offered to show, as the plaintiffs in error insisted, that it was the same iron which the defendant in error had purchased, and which had been shipped at Elizabethport. And on the ground that the identity of the iron was not shown, the plaintiffs in error insist that the court erred in refusing to charge the jury, as requested by them, to return a verdict in their favor.
We think the assignment of error is not supported by the record. The defendant in error did introduce evidence, and, as it seems to us, persuasive evidence, to show that the iron shipped for the defendant in error at Elizabethport was the iron landed and delivered to him at Milwaukee.
The testimony introduced tended to prove that one Hazard, on whose dock at Elizabethport, New Jersey, iron belonging to the plaintiffs in error was stacked, shipped between, April 28 and May 12 at Elizabethport, on five canal boats, whose names are given, 500 tons of American iron consigned to Thomas J. Pope & Brother, care National Exchange Bank,
Milwaukee, Wisconsin, and to be transported to Milwaukee by the river, canal, and lakes; that about the same time there was shipped to the same consignees and to the care of the same bank, the 300 tons of Scotch iron which had been sold by the plaintiffs in error to the defendant in error.
It was further shown that on June 9 and 15 following, 800 tons of iron, 500 being American and 300 Scotch, were transferred from the dock at Buffalo to two schooners, and the bills of lading given by the schooners stated that the 500 tons of American iron were the cargo of canal boats of the same name as those on which the iron had been shipped at Elizabethport, and it appeared that both the American and Scotch iron transferred to the schooners was consigned to Thomas J. Pope & Brother, care National Exchange Bank, Milwaukee, Wisconsin. It was further shown that about July 15, the two schooners above mentioned landed at Milwaukee 500 tons American iron and 300 tons of Scotch iron for the consignees mentioned in the bills of lading, and the iron was delivered to the defendant in error, and it was conceded that the 300 tons of Scotch iron was the same which had been sold by the plaintiffs in error to the defendant in error and shipped to said consignees for him.
In addition to this evidence, the defendant in error introduced the deposition of James E. Pope, one of the plaintiffs in error, in which he testified as follows:
"There is a suit pending between my firm, as plaintiff, and the Coplay Iron Company, as defendant, relating to the American iron shipped to E. P. Allis & Co."
As an exhibit to this deposition there was a copy of the complaint in the suit, sworn to by James E. Pope, from which it appeared that the action was brought to recover of the Coplay Iron Company damages for the...
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