Aultman & Taylor Mach. Co v. Gay

• Decision Date: 19 November 1908
• Citation: 62 S.E. 946,108 Va. 647
• Court: Virginia Supreme Court
• Parties: AULTMAN & TAYLOR MACHINERY CO. v. GAY.

62 S.E. 946

108 Va. 647

AULTMAN & TAYLOR MACHINERY CO.

v.GAY.

Supreme Court of Appeals of Virginia.

Nov. 19, 1908.

1. Sales (§ 161^*)—Performance—Delivery.

F., acting as agent for defendant, sold an engine to the T. Company at H., and the engine was consigned by defendant to itself, care of F. at H., pursuant to an order contained in a printed form furnished by defendant to be signed by the purchaser. On arrival, the engine was put together on the car by F., assisted by another person employed by him. The printed order specified no particular place for delivery, but stipulated that the engine was shipped as the property of defendant. Held, that the actof F. and his assistant in setting up the engine and in removing it from the car, and testing it, did not constitute a delivery to the T. Company.

[Ed. Note.—For other cases, see Sales, Dec. Dig. § 161.^2-*]

2. Principal and Agent (§ 159*)—Injury to Third Person—Scope op Authority.

Where F., acting as the seller's agent, sold an engine to the T. Company, and the engine was consigned by the seller to itself, in care of F., his act in securing an assistant, setting up the engine, running it from the car and testing it was within the scope of his authority, so that the seller was liable for damages from fire resulting from the negligent operation of the engine during the test.

[Ed. Note.—For other cases, see Principal and Agent, Cent. Dig. §§ 600-603; Dec. Dig. § 159.*]

3. Appeal and Error (§ 1151*)—Disposition of Cause—Modification—Amount.

In an action for damages to a house which plaintiff owned in common with others, the court instructed the jury to assess plaintiff's damages at a certain fractional part of the value of the property, which part, it was admitted on appeal, was slightly too large. The jury placed a valuation on the house. Held, that the court on appeal would modify the judgment by giving plaintiff the true fractional portion of such valuation to which he was entitled.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 4501; Dec. Dig. § 1151.*]

4. Words and Phrases—"Knocked Down."

The term "knocked down, " used to describe the condition of a traction engine on arrival at its destination, means that its several parts had to be put together in order to its operation.

Appeal from Circuit Court, Rockingham County.

Action by Marcellus C. Gay against the Aultman & Taylor Machinery Company. Judgment for plaintiff, and defendant appeals. Modified and affirmed.

Conrad & Conrad, for appellant.

E. B. Crawford and D. O. Dechert, for appellee.

HARRISON, J. This action was brought by Marcellus C. Gay to recover of the defendant machinery company damages for the loss of his house by fire, alleged to have been caused by its negligent operation of a traction engine. There was a verdict and judgment thereon in favor of the plaintiff for $1,096, which the defendant company seeks to have reviewed and set aside by this court.

The record, considered (as it must be here) as upon a demurrer to the evidence, shows that the traction engine in question arrived at Harrisonburg, Va., in a "knocked down" condition; that is, its several parts had to be put together in order to its operation. The engine was consigned by the defendant company to itself, in care of R. L. Floyd, at Harrisonburg, and was intended for the Valley Turnpike Company, which had negotiated for its purchase with said R. L. Floyd, acting on behalf of the defendant. The shipment was made to the defendant company in pursuance of an order contained in one of the printed forms furnished by the defendant to be signed by the purchaser of its machinery, which in this instance was signed by a committee of the Valley Turnpike Company. When the engine arrived at Harrisonburg, it was put together on the flat car on which it was carried by R. L. Floyd, who, acting on behalf of the defendant, had negotiated its sale to the turnpike company. In the performance of this work of reconstruction, Floyd was assisted by one Elmer Evans. Immediately after it was put together, the engine, though intended for the use of coal, was fired with wood, and, without a spark arrester, was propelled rapidly three times up and down a steep hill, passing the plaintiff's house each time and throwing sparks toward the house, in which direction the wind was blowing. About the time the last trip was made up the hill the house was found to be on fire, and was rapidly consumed.

The theory sought to be maintained by the defendant is that the fire started from a flue on the inside of the "L" of the house. It is useless to review the evidence on this subject. Its careful consideration shows that the jury were abundantly justified in their conclusion that the fire was caused by sparks emitted from the engine in consequence of its negligent operation.

It is contended on behalf of the defendant that at the time of the fire the engine was not its property. It is insisted, as the basis of this proposition, that delivery of the engine to the turnpike company was complete at the moment of its removal from the flat car.

The printed order for the engine, which was signed by the committee of the turnpike company, furnishes no warrant for this conclusion. There is no stipulation therein...