Bechtold v. Lyon

• Decision Date: 15 January 1892
• Docket Number: 15,374
• Citation: 29 N.E. 912,130 Ind. 194
• Parties: Bechtold v. Lyon
• Court: Indiana Supreme Court

29 N.E. 912

130 Ind. 194

Bechtold v. Lyon

No. 15,374

Supreme Court of Indiana

January 15, 1892

From the Posey Circuit Court.

Judgment affirmed, with costs.

S. B Vance and W. P. Edson, for appellant.

A Gilchrist, C. A. De Bruler, G. V. Menzies and E. M. Spencer for appellee.

OPINION

Olds, J.

The appellee, Michael Lyon, was a clothing merchant, in the city of Evansville, Indiana, and on the 8th day of July, 1886, he and one R. Ferriman entered into an agreement, of which the following is a copy:

"Evansville, July 8, 1886.

"M. Lyon agrees to furnish R. Ferriman with a stock of clothing and furnishing goods, to be sold in Shawneetown, Illinois. The goods all to be sold strictly for cash--credit is not to be given any one under any circumstances. Whenever the business fails to pay a profit each month above current expenses, the business to be discontinued at the option of M. Lyon. Each and every article sold is to be entered in a cash book, and the lot-number and cost of each article, and the price sold for, are to appear in the daily sales. If any goods are missing whenever an account of stock is taken, the cost of any goods missing is to be paid by R. Ferriman, as M. Lyon is to suffer no loss on account of any goods not accounted for in the sales.

"R. Ferriman is to give close and careful attention to the business, and in consideration of his services he is to receive one-half of the net profits after all the necessary expenses of running the business are deducted.

"M. Lyon is to furnish the goods, and the profits and losses are to be equally divided. R. Ferriman is to receive no salary, as one-half of the profits is to be his compensation for his services.

"The stock is to be kept constantly insured for its full value.

"R. Ferriman is to forward to M. Lyon, every Monday during the year, a statement giving the article, lot-number, cost and price sold for, of all his sales during the week. He is also to remit to M. Lyon, on each Monday, a check for the full amount of the week's sales, less the expenses and his half of the profits.

"The business is to be under the control of M. Lyon, and he is to be consulted in reference to advertising and all other matters connected with the business.

"When the business is discontinued, the goods which are the property of M. Lyon are to be returned to him at Evansville.

"If R. Ferriman adds any other goods on his own account to the stock, he is to pay part of the expenses in proportion to the amount sold. R. Ferriman is to keep the clothing and furnishing goods, all goods furnished by M. Lyon, insured in the name of M. Lyon, for the full value of the goods; and goods owned by R. Ferriman or others in same store house, to be insured 'separately.'

"R. Ferriman.

"M. Lyon."

On the same paper as the foregoing agreement is the following:

"Shawneetown, Illinois, July 9th, 1886.

"We have carefully examined the contract between M. Lyon of Evansville, and R. Ferriman of Shawneetown, hereto attached, and give this my bond to guarantee to M. Lyon, that we will be responsible for the fulfilment of the aforesaid contract. In case R. Ferriman should fail to comply with this contract fully, we pledge ourselves to fulfil the contract in his stead. We guarantee to stand good to M. Lyon for any loss he may sustain in case R. Ferriman fails to comply with his contract.

"Martha H. Ferriman.

"Marshall M. Pool.

"Jacob Bechtold."

Appellee furnished the goods under the contract to Ferriman, and a store was opened by him at Shawneetown, and conducted under their said contract until about the 20th of April, 1887. By the direction of the appellee the business was then discontinued, and the goods returned to the appellee at Evansville. When received by the appellee, the goods were wet and damaged, and this action was brought against Ferriman and the appellant Bechtold on the written contracts above set out, to recover damages for injury to the goods by reason of being wet and injured, and for other alleged breaches of his contract by Ferriman. The action was subsequently dismissed as to Ferriman, and was prosecuted as an action against the appellant, as guarantor, for breach of the contract by Ferriman.

Issue was joined and the case tried by the court, and special findings of facts were made and conclusions of law stated in favor of appellee.

The finding of fact which fixes the liability of the appellant for damages to the goods in returning them to the appellee at Evansville is numbered eight, and is as follows:

"8. Shortly before the 21st day of July, 1887, the plaintiff directed said Ferriman to discontinue the business at Shawneetown, and to ship the goods remaining in stock then to plaintiff at Evansville, Indiana. As the result of some correspondence between Ferriman and the plaintiff, it was understood that the goods should be shipped on a steamboat plying between Evansville, Indiana, and Cairo, Illinois, and passing the port of Shawneetown, and owned and run by the Evansville, Cairo and Memphis Steam Packet Company. On the 21st day of July, 1887, said Ferriman packed the goods aforesaid in eleven dry goods boxes or cases which he had procured from various merchants in Shawneetown, and which had been used before for the transportation of goods. They were the best that could be obtained at Shawneetown, at the time but were not in such condition that they would prevent water from penetrating them and injuring their contents if exposed to rain. Said Ferriman delivered said goods to L. Roselot who was engaged in the general business of handling and delivering goods and merchandise to and from steamboats, railroads and merchants in said city of Shawneetown, with wagons and drays, to be carried from Ferriman's store to be delivered to E. F. Harsha, at the steamboat landing in said city. The boxes containing the goods were delivered to said Roselot about the middle of the afternoon. After the goods left the store, said Ferriman never saw them again, or the boxes containing them, and gave no further attention to them. His place of business was about a square and a half from the river. He did not go to the river or make any inquiry as to where the goods were placed, or how they were disposed of. At that time there was no wharf boat at Shawneetown, and no protected place in use for the storage of goods to be shipped by steamboat, except a railroad freight car on a railroad track, and embankment on the river bank at the steamboat wharf, and these facts were known to said Ferriman when he sent said goods to the landing and wharf aforesaid. The boxes containing the goods were delivered by the said Roselot to one E. F. Harsha, at the wharf and place aforesaid, and were placed on the wharf or place of landing at the river without anything under them or over them except some old skiff sails or canvas, and remained in that condition until the next morning. The said E. F. Harsha was without visible property; it was rumored that he had property in Kansas. He was then and had been in the business for several months, at that place, of receiving goods from merchants at Shawneetown and shipping them at the landing and wharf aforesaid for merchants and persons doing business there, on steamboats. He was the only person engaged in that business at Shawneetown, at that time, and did receive and ship goods generally for the merchants and shippers of that place on steamboats at that time. He was not the agent of the Cairo and Memphis Steam Packet Company, and had no power or authority to issue bills of lading for said company, or to receive freight for such company, or to make any contracts whatever on behalf of said company. No bill of lading...