Bradstreet v. Rich

• Decision Date: 27 January 1883
• Parties: JOSEPH BRADSTREET and others, v. ABRAM RICH, Junior.
• Court: Maine Supreme Court

74 Me. 303

JOSEPH BRADSTREET and others, v. ABRAM RICH, Junior.

Supreme Judicial Court of Maine.

January 27, 1883

ON EXCEPTIONS AND REPORT upon motion to set aside the verdict.

Assumpsit on account annexed, for eleven cargoes of ice claiming the amount due with interest to be five thousand six hundred seventy-seven dollars and forty-three cents.

The writ was dated February 5, 1877.

This case has been once before at the law court and is reported in 72 Me. 233.

The second trial was at the October term, 1881, and the verdict was for six thousand and fifteen dollars. It now comes to the law court on exceptions and motion of the defendant.

The material facts are stated in the opinion.

J Baker and L. Clay, for the plaintiffs, cited: On the motion, Warren v. Williams, 52 Me. 343; Folsom v. Skofield, 53 Me. 171; Staples v. Wellington, 58 Me. 453; Enfield v. Buswell, 62 Me. 128. On the exceptions,-- Adams v. Hill, 16 Me. 215; Sawyer v. Hammatt, 15 Me. 40; Virgie v. Stetson, 73 Me. 452; Stephenson v. Thayer, 63 Me. 143; Smart v. White, 73 Me. 332.

H. M Heath, for the defendant, contended that the court erred in the instruction that the indorsement adopted and incorporated into it, the " within contract." If so, then there was an absolute sale from plaintiffs to defendant, of three thousand tons of ice, upon the specified terms, and the parol evidence introduced on both sides affecting and changing the within contract was inadmissible. The position of the court in 72 Me. 233, carries with it, ex necessitate, the idea that " the within contract" is not a part of the indorsement.

The court inaccurately stated the position of the defendant and the testimony of a witness. An instruction which misrepresents the evidence before the jury is erroneous. Frame v. Badger, 79 Ill. 441.

The court assumed the existence of facts which there was no evidence tending to prove, and gave undue prominence to such. Sawyer v. Hannibal, 37 Mo. 240; Clarke v. Hammerle, 27 Mo. 55; Anderson v. Kincheloe, 30 Mo. 520; Fine v. St. Louis P. School, 39 Mo. 59; Rose v. Spies, 44 Mo. 20; Jones v. Jones, 57 Mo. 138; Parker v. Donaldson, 6 Watts and S. 132.

We complain of the qualifications attached to our requests, because there was no evidence upon which to rest such qualifications.

The presiding judge assumed and held that the arrangement between the parties was a contract of sale. We deny it. It was of the nature of a partnership--the plaintiffs were to furnish three-tenths of the ice and the defendant was to manage the business, answerable only for due diligence and actual receipts. Bethel Steam Mill Co. v. Brown, 57 Me. 9.

Counsel further elaborately argued the motion to set aside the verdict.

APPLETON C. J.

On May 6, 1876, at New York, the defendant made an agreement under seal, with Hixon W. Field, to sell him ten thousand tons of river ice of a certain description, delivered within a certain time, free on board of vessels at the place of landing on the Kennebec river or its vicinity, at two dollars and fifty cents per ton, for which Field was to pay on presentation of a sight draft with bill of lading and weigher's certificate attached thereto. For the contract in full, see Bradstreet v. Rich, 72 Me. 233.

Subsequently the plaintiffs signed on the back of the defendant's contract with Field, the following agreement.

" We, the undersigned, hereby agree to furnish A. Rich, Jr., three thousand tons of ice, (3000 tons,) per the within contract.

Gardiner, May 15, 1876. Joseph Bradstreet.

L. D. Cook.

P. G. Bradstreet.

F. Stevens."

Before the delivery of ice under the contract between Field and defendant, bearing date May 6, 1876, was completed, Field failed. This action is brought to recover compensation for ice delivered the defendant under the agreement of May 15, 1876.

The defence is that the defendant procured the contract with Field at the solicitation and for the benefit of the plaintiffs as well as himself-- that they took equally with himself the risk of Field's insolvency, and that their indorsement on the same was to indicate their share in the contract, namely, three-tenths, and that his liability was contingent and not absolute, he being responsible only for the amounts received from Field, and that they were to furnish Rich ice to be sold to Field in fulfillment of his contract.

The plaintiffs claimed that the sale was made to the defendant, that it was absolute, and that they were not parties in any way to the defendant's contract with Field. The jury found for the plaintiffs, on this issue.

The contract under which the plaintiffs claim to recover, was with the defendant. Field was no party to the same. The plaintiffs performing it could not look to him for payment. They had no right to draw for funds. So far as the evidence disclosed, Field had never any dealings with the plaintiffs, nor was he even aware of their contract with the defendant. In case of its breach he had no right of action against them.

The issue presented was whether the plaintiffs were to share with the defendant the risks as well as the benefit of his contract with Field, or were to look to him as the purchaser of their ice. The jury rendered a verdict against the defendant, and he has filed exceptions to the rulings of the presiding justice, and a motion for a new trial, on the ground that the verdict is against evidence.

(1.) It is objected that the jury were instructed that the memorandum signed by the plaintiffs incorporated in it the contract of the defendant with Field. It reads, " per the within contract." When a contract has reference to another paper for its terms, the effect is the same as if the words of the paper referred to were inserted in the contract. Adams v. Hill, 16 Me. 215; Sawyer v. Hammatt, 15 Me. 40. The reference to the contract was for some purpose. It was to designate the quality of the ice, when and where it was to be delivered, and its price. It indicated to the plaintiffs what they were to do, if it was a sale, to enable the defendant to perform his contract. If the plaintiffs were to be partners in the contract to the extent of three-tenths, it referred them to the contract in the performance of which they were interested. Whether the hypothesis of the plaintiffs or the defendants be the true one, in either event, the contract was, with certain limitations, a part of the same.

(2.) It is said that the court erred in stating the ground of defence--that this was not a contract between himself and the plaintiffs, but that the contract, on the part of the plaintiffs, was really with Field. But if there was an error of this kind, it was the duty of counsel to advise the court that it misapprehended the nature of the defence. It appears, however, that the error was corrected, the court subsequently instructing the jury that " whatever contract there was in this case, was between the plaintiffs and the defendant." The jury were, in this respect, instructed in accordance with the claim of the defendant.

The court instructed the jury that " when a man agrees in writing to deliver to another a chattel at a price specified, and at a time and in a manner specified, and the other party, though not signing the contract himself, takes it and claims execution of it on the part of the party signing it, and receives the property under it, he must be held as receiving it according to the terms of the written contract signed by the vendor." This proposition, as matter of law, will hardly be questioned.

(3.) The court then proceeded to give this further instruction: " I instruct you as matter of law, that if the plaintiffs delivered ice to the defendant under this written contract by them signed, an obligation arises on the part of the defendant to perform on his part in accordance with the terms and stipulations of the plaintiffs' written contract; and when the property was delivered under that contract, the title passed to the defendant."

This instruction withdraws nothing from the jury. It is conditional. If the facts are so and so, a certain legal conclusion necessarily follows. Such is the instruction. In it we perceive no error of law. If correct instructions are given, it is no ground of exception that instructions not requested, but which might properly have been given, were not given. If the defendant had desired further and additional instructions applicable to the hypothesis upon which the defense rested, he should have requested them. " Upon a bill of exceptions," observes LORD J., in Corrigan v. Conn. F. Ins. Co. 122 Mass. 298, " it is not sufficient for a party to show that possibly full and accurate instructions were not given, but the party excepting must show affirmatively...