C. B. Havens & Company v. Grand Island Light & Fuel Company

• Decision Date: 06 June 1894
• Docket Number: 5557
• Citation: 59 N.W. 681,41 Neb. 153
• Parties: C. B. HAVENS & COMPANY v. GRAND ISLAND LIGHT & FUEL COMPANY
• Court: Nebraska Supreme Court

59 N.W. 681

41 Neb. 153

C. B. HAVENS & COMPANY v. GRAND ISLAND LIGHT & FUEL COMPANY

No. 5557

Supreme Court of Nebraska

June 6, 1894

ERROR from the district court of Hall county. Tried below before COFFIN, J.

AFFIRMED.

Bartlett Crane & Baldrige and Martin Langdon, for plaintiff in error.

Abbott & Caldwell, contra.

OPINION

RAGAN C.

In October, 1889, C. B. Havens & Co. were coal merchants in the city of Omaha and the Grand Island Light & Fuel Company was a corporation engaged in the manufacture of gas and dealing in coal in the city of Grand Island. On the 12th day of October of said year Havens & Co. wrote a letter to the fuel company as follows: "We had two cars of grate coal shipped on our account from mine to consumer of ours, who reports that the coal is a little too large size for his use. Knowing that you prefer the larger sized grate coal, we will make you offer of $ 9.85 on these two cars if you can receive them between the 20th and 30th of this month. The coal is straight D. L. and W. Scranton, fresh from the mine. Please advise us at your early convenience." On the 15th of October the fuel company answered this letter as follows: "Your letter of the 12th inst. at hand. You may ship the two cars of hard coal at price named in your letter. " On the 16th of October Havens & Co wrote to the fuel company the following letter: "We have your favor of the 15th and have entered your order for two cars of grate coal at $ 9.85 per ton, F. O. B. Grand Island. Will have the cars forwarded to you in a few days." In pursuance of this correspondence Havens & Co. shipped to the fuel company two cars of coal. One car was numbered 29390 and contained 29,010 pounds of coal. This car of coal is only incidentally involved in this action, as it was accepted by the fuel company and paid for. The other car shipped by Havens & Co. was a car numbered 6855, and claimed by them to contain 29,680 pounds of coal. It was to recover for this last car of coal that this action was brought. The fuel company defended on the grounds that they did not receive as much coal as sued for, and that the coal received was inferior in quality to that which Havens & Co. agreed to furnish by their contract. Havens & Co. had a verdict for $ 8.13, on which judgment was rendered, and they bring the case here for review.

1. The first, second, and third errors assigned are that the verdict is not sustained by sufficient evidence and is contrary to the law of the case. There is practically no dispute but that the car of coal delivered to the fuel company did not contain the amount of coal sued for; and the evidence supports the finding of the jury that the coal delivered was inferior in quality to that contracted for. Counsel for Havens & Co., however, contend that the title to the coal vested in the fuel company when it was delivered to the carrier at Omaha, and that if the coal received by the fuel company was inferior in quality or less in amount than the coal delivered to the carrier at Omaha, that such loss and depreciation must be borne either by the carrier or the fuel company. The general rule doubtless is that the delivery of goods to a carrier consigned to the purchaser is a delivery to the purchaser, and that the title of the goods so delivered to the carrier at once vests in the purchaser; but this rule is by no means universal, and whether applicable in any case, depends upon the facts, circumstances, and the contract between the seller and the purchaser in the case. But if we consider that the title to this car of coal sued for vested in the fuel company at the moment it was consigned to the carrier at Omaha by Havens & Co., we do not see how that would help the plaintiff in error here. To make the fuel company or the carrier bear the loss resulting from the inferior quality of coal and its depreciation in amount the plaintiffs in error would have to show that they delivered the amount of coal sued for to the carrier at Omaha, and that the coal delivered was of the quality called for by the contract; and the evidence in the record does not show either one of these facts. The fuel company was not to pay for this coal by the car, but to pay so much per ton for it, and the coal was to be of a certain quality, and if Havens & Co. delivered this coal to the fuel company at Omaha, then the fuel company is not compelled to pay for any more coal than was delivered to it at Omaha, and not compelled to accept or pay for coal inferior in quality to that purchased.

Another argument under this assignment of error is that the fuel company accepted and used the coal shipped without protest and is now estopped from alleging that the coal received was inferior in quality to that called for by the contract. If one contracts for property of certain quality, and on receiving it...