150 U.S. 312 (1893), 14, Sturm v. Boker

Docket Nº:No. 14
Citation:150 U.S. 312, 14 S.Ct. 99, 37 L.Ed. 1093
Party Name:Sturm v. Boker
Case Date:November 20, 1893
Court:United States Supreme Court
 
FREE EXCERPT

Page 312

150 U.S. 312 (1893)

14 S.Ct. 99, 37 L.Ed. 1093

Sturm

v.

Boker

No. 14

United States Supreme Court

November 20, 1893

Argued October 13, 1893

APPEAL FROM THE CIRCUIT COURT OF THE UNITED

STATES FOR THE DISTRICT OF INDIANA

Syllabus

In 1867, B. and S. entered into a contract which was evidenced by the following writings, signed by them respectively. (1) B. to S., dated September 18:

Enclosed please find our bill of sundry arms, etc., amounting to $39,887.60, for which amount please give us credit on consignment account. As mutually agreed, we consign these arms to your care, to be shipped to Mexico and to be sold there by you to the best advantage. Should these arms not be disposed of at the whole amount charged, we have to bear the loss. Should there be any profit realized over the above amount of bill, such profit shall be equally divided between yourself and us. Also, it is understood that all these goods are shipped by you free of any expenses to us, and that in case all or any of them should not be sold, they shall be returned to us free of all charges. As you have insured these goods, as well as other merchandise, we should be pleased to have the amount of $40,000 transferred to us. Please

Page 313

acknowledge the receipt of this, expressing your acquiescence in above, and oblige.

Accompanying this was an invoice headed "S. in joint account with B." To this S. replied the same month:

I have the honor to acknowledge the receipt of your letter of the 18th inst., in which you enclose bill of sundry arms, amounting to $39,887.60, consigned to me upon certain conditions contained in said letter. In reply I have to say that I accept the terms of said conditions of consignment, and as soon as I obtain the policies of insurance upon said goods will transfer them to you.

In October, B. wrote S.:

Enclosed we beg to hand yon our bill for muskets, amounting to $10,170, for which please give us credit on consignment account. As mutually agreed, we consign these arms to your care, to be shipped to Mexico, and to be sold there by you to the best advantage. Should these arms not be disposed of at the amount charged, we Lave to stand the loss. Should there be any profit realized over the amount, such profit shall be equally divided between yourself and us. It is also understood that these goods shall be shipped by you free of any expenses to us, and that in case they should not find a ready sale, they shall be returned to us free of all charges. Please attend to the insurance of this lot and have the amount transferred to us in one policy; also please acknowledge the receipt of this, stating your acquiescence in above.

Accompanying this was an invoice headed: "S. bought of B. in joint account." The goods were shipped for their destination in Mexico. S. took out policies of insurance on the September shipments in his own name "for account of whom it might concern," which policies were headed to B. by direction of S. The October shipments reached their destination. A large part of the September shipments was lost. B. collected the insurance on such of the policies as were in his hands.

Held:

(1) That the contract was not a contract of sale of the goods by B. to S., but a bailment upon the terms stated in the correspondence, and as it was clearly expressed in the writings between the parties, it could not be varied by the terms of the printed bill-head of the invoice.

(2) That S., as bailee, was exempted by the common law from liability for loss of the consigned goods arising from inevitable accident

(3) That there was no undertaking in the contract on his part which took him out of the operation of the common law rule.

(4) That the taking of the policies of insurance in his own name by S. did not tend, under the circumstances, to establish that he recognized his liability for the loss of the goods, as it was clear that, under a policy running to S. "for account of whom it might concern," B. could show and recover, in event of loss, his interest, which was a substantial one.

(5) That certain statements made by S. did not amount to an estoppel, the rule being that a statement of opinion upon a question of law, where the facts are equally well known to both parties, does not work an estoppel.

Page 314

The Court stated the case as follows:

This suit, as originally instituted, was an action at law by the appellant, in the Superior Court of Marion County, Indiana, against the defendants to recover the sum of $238,000, with interest thereon, for which sum the plaintiff alleged they were indebted to him. The defendants, being citizens of New York, removed the cause to the circuit court of the United States; and, as the claim involved various matters of account running through a period of several years, the court, on motion of the defendants, transferred the cause to the equity docket and required the plaintiff to reform his pleadings. In compliance with this order, the plaintiff filed his bill of complaint, setting forth various transactions involving matters of account between himself and the defendants, commencing in September, 1867, and continuing down to September, 1876. The answer of the defendants admitted many of the facts charged and either denied others or set up new matter in avoidance thereof.

The several items of account presented by the pleadings need not be specially mentioned or separately considered, not is it deemed necessary, in the view we entertain of the case, to review the immense volume of testimony taken in the course of the litigation -- covering about 4,000 printed pages -- involving irreconcilable conflicts, and including much that is wholly irrelevant. The material facts are clearly established by the written agreement of the parties and by the admissions made in the pleadings, and the controlling question of law arising thereon, and upon which the correctness of the decree dismissing the bill must be determined, is whether the court below placed the proper construction upon the original contract entered into between the parties, under which the defendants consigned certain arms and munitions of war to the complainant, to be by him shipped to, and sold in, Mexico. That contract, after some previous verbal negotiations, was embraced in the following correspondence:

Page 315

Office of Hermann Boker & Co., No. 50 Cliff Street

New York, September 18th, 1867

General H. Sturm, present.

Dear Sir: Enclosed please find our bill of sundry arms, etc., amounting to $39,887.60, for which amount please give us credit on consignment account.

As mutually agreed, we consign these arms to your care, to be shipped to Mexico, and to be sold there by you to the best advantage. Should these arms not be disposed of at the whole amount charged, we have to bear the loss. Should there be any profit realized over the above amount of bill, such profit shall be equally divided between yourself and us.

Also, it is understood that all these goods are shipped by you free of any expenses to us, and that, in case all or any of them should not be sold, they shall be returned to us free of all charges.

As you have insured these goods, as well as other merchandise, we should be pleased to have the amount of $40,000 transferred to us. Please acknowledge the receipt of this, expressing your acquiescence in above, and oblige,

Yours, truly,

Hermann Boker & Co.

Accompanying this letter was an invoice, in form as follows:

No deduction allowed for errors or damages unless claim is made within five days after the goods are received.

Herman Funke Folio _____.

R. A. Boker 50 Cliff Street, New York,

F. Schumacher Sept. 18th, 1867

Mr. H. Sturm in joint acc't with Hermann Boker & Co.:

Payable in gold

Terms, net cash

Forwarded for your account and risk, per _____ ________:

1 12-pounder battery, brass, complete. . . $ 9,000

1 3-rifled battery, iron, complete . . . . 8,000

------- $17,000

Page 316

73 cases of 20 ea.) 1,470 Springfield R.

1 " 10 " ) muskets, 8.00 . . . . $11,760

74 cases, 3.50. . . . . . . . . . . . . . . 259

------- 12,019

1,000 r'ds fixed ammunition, 12 p., 2.00 2,000

504 r'ds fixed ammunition, 24 pd., 2.00 1,008

209 boxes:

100,000 Enfield cartridges, 12.00 . . . . . 1,200

100 boxes:

200,000 Maynards, 20.50 . . . . . . . . . . 4,100

------- 8,308

200 boxes:

670 perc. shell, 3 Hotchkiss, 1.25. . . . . 837.50

680 time fuse, 3 " 1.25. . . . . 850.00

270 case shot, 3 " 1.55. . . . . 428.50

180 canister, 3 " 1.00. . . . . 180.00

153 boxes, painted, . . . . . 1.50. . . . . 229.50

27 " not painted. . . . 1.30. . . . . 35.10

------ 2,560.60

----------

$39,887.60

To which complainant replied:

New York, Sept. 26th, 1867

Messars. Hermann Boker & Co.

Gents: I have the honor to acknowledge the receipt of your letter of the 18th inst., in which you enclose bill of sundry arms, amounting to $39,887.60, consigned to me upon certain conditions contained in said letter.

[14 S.Ct. 101]

In reply, I have to say that I accept the terms of said conditions of consignment, and, as soon as I obtain the policies of insurance upon said goods, will transfer them to you.

Very respectfully, your ob't servant,

H. Sturm

There was another consignment, the terms of which are contained in the letters of October 24, 1867, as follows:

Page 317

New York, October 24th, 1867

General H. Sturm, present.

Dear Sir: Enclosed we beg to hand you our bill for muskets, amounting to $10,175, for which please give us credit on consignment account.

As mutually agreed, we consign these arms to your care, to be...

To continue reading

FREE SIGN UP