Allen & Wheeler Co. v. Farr
| Decision Date | 23 October 1917 |
| Docket Number | 3069. |
| Citation | 93 S.E. 1030,81 W.Va. 150 |
| Parties | ALLEN & WHEELER CO. v. FARR. |
| Court | West Virginia Supreme Court |
Submitted October 16, 1917.
Syllabus by the Court.
Where the seller ships goods on the order of the buyer, "on usual terms delivered," and forwards the bill of lading with draft attached to a bank, with direction to notify the buyer, the title does not pass, in the absence of clear proof of a contrary intention by the contracting parties.
A breach of his contract by the purchaser of goods, when performance thereof is tendered by the seller, renders him liable in damages.
Through a broker in Huntington, F., a grain dealer in that city ordered from A. & W. Co., in Troy, Ohio, a carload of grain. It arrived in Huntington, in good condition, on the evening of March 25, 1913, and on the next morning was placed on a spur track built for F.'s accommodation, and he was immediately notified by postal card dropped in the city post office. Bill of lading with draft attached had been mailed by A. & W. Co. to the Huntington National Bank, with instructions to notify F., and was received by it on the 25th of March. It immediately notified F. by telephone and was requested by him to hold the draft until arrival of the car. F. did not pay the draft or take up the bill of lading, and on the morning of the 28th an unusual flood in the Ohio river submerged the spur track, and the water continued to rise until it destroyed the grain. Held, F. is liable in damages to A. & W. Co. for his negligence in not taking up the bill of lading and receiving the grain.
Error to Circuit Court, Cabell County.
Action by the Allen & Wheeler Company against John S. Farr. Verdict for plaintiff was set aside, and a new trial awarded, and plaintiff excepts and brings error. Judgment set aside, verdict reinstated, and judgment entered thereon.
Campbell Brown & Davis, of Huntington, for plaintiff in error.
Marcum & Shepherd, of Huntington, for defendant in error.
Defendant a grain dealer in the city of Huntington, purchased, through H. W. Aleshire Company, a broker in said city, from Allen & Wheeler Company, a corporation engaged in the milling business in the city of Troy, Ohio, one split car of grain consisting of 500 bushels of yellow shelled corn and 800 bushels of oats, to be shipped on "usual terms, delivered." The order was made on March 18, 1913, and on the evening of the 25th of March the carload of grain arrived in Huntington; on the morning of the 26th it was placed on a spur track, built by the Chesapeake & Ohio Railway Company for defendant's acommodation and use, and a postal notice placed in the post office by the freight agent, addressed to defendant. Plaintiff billed the car to itself as consignee, and mailed the bill of lading, with draft attached, to Huntington National Bank, and requested it to notify defendant. The draft and bill of lading were received by the bank on the 25th, and it immediately notified defendant by telephone and by mail, and he requested the bank to hold the draft until the arrival of the car. The grain remained in the car on the spur track until it was so damaged by an unprecedented rise in the Ohio river as to be worthless. On the morning of the 25th the stage of the river at Huntington was 14.1 feet; on the 26th, 17.2 feet; on the 27th, 39.4 feet; and on the 28th 54.5 feet. The spur track was not submerged until the morning of the 28th.
Defendant declined to pay for the grain, and plaintiff brought this action. The declaration contains two counts; the first for the price of the grain sold and delivered, and the second for damages for a breach of the contract to purchase the grain. The jury found for the plaintiff the sum of $529.39. On motion of defendant the court set it aside and awarded a new trial, and plaintiff excepted and was awarded this writ of error.
If the evidence supports the verdict on either count in the declaration, and no error was committed in the instructions to the jury, the verdict should not have been set aside. The evidence does not prove that delivery had been made to defendant, or that title had passed. Plai...
To continue reading
Request your trial