Chicago Cheese Co. v. Fogg
| Decision Date | 08 December 1892 |
| Parties | CHICAGO CHEESE CO. v. FOGG. |
| Court | U.S. District Court — Northern District of Ohio |
Williamson & Cushing and J. S. McClure, for plaintiff.
Wm. R Day and J. W. Crane, for defendant.
The plaintiff's petition in this case sets forth two causes of action. In the first it claims damages for the breach of an alleged contract made on August 16, 1886, between the defendant and the Charles Baltz Company, of Chicago, Ill., by which the defendant agreed to sell to the said Charles Baltz Company 1,000 loaves of domestic Swiss cheese, and to deliver the same, as called for by it, at Chicago, Ill., on or before the last day of June, 1887, at the prices named, and varying as to the time for deliveries, and on payments specified, the loaves of cheese to vary from 125 to 180 pounds in weight and to average not less than 150 pounds. In September October, and November of the same year, the defendant delivered on said contract some 7,429 pounds of the 150,000 pounds contracted for, and received pay for the same. The vendee having failed, and being indebted to A. S. White & Co. something over $17,000, it assigned, transferred, and sold to said firm, on the 14th day of March, 1890, in consideration of $15,000, 'the following goods and chattels, to wit the cheese then on hand, the boxes and cheeses to be delivered on hand at 73 Water street, together with the outstanding accounts due to Charles Baltz & Company. ' Five days thereafter, to wit, on the 19th of March, the said firm of A. S. White & Co. sold and transferred to the plaintiff, the Chicago Cheese Company, for a consideration of $15,000, 'all the cheese and empty boxes now on hand or in stock, belonging to said A. S. White & Co., purchased by them from the Charles Baltz Company, or to which the said A. S. White & Co. are entitled by reason of their said purchase.'
The last vendee brings this suit against the defendant, and claims damages in its first cause of action in the sum of $7,000, with interest, for the defendant's failure to deliver the balance of Swiss cheese covered by said contract of August 16, 1886. It claims in its second cause of action judgment for $400 and interest, for money advanced and paid by the Charles Baltz Company to the defendant on or about January 25, 1887, upon said unfulfilled contract of August, 1886. The defendant, in his answer, denied that the plaintiff had any right or interest in said claim upon which to base this suit, and denied any breach of contract, or that there was anything due to the plaintiff on either cause of action. The plaintiff, to maintain the issues made on its behalf, and to show its title to the claim sued upon, offered the two bills of sale or assignments above cited. The defendant objected to the introduction of said assignments, because upon their face they disclosed the fact that the claims sued upon in the first and second causes of action were not included in either of said instruments.
Upon the authority of the cases of Bradley v. Steam Packet Co., 13 Pet. 89, and of Reed v. Insurance Co., 95 U.S. 23, the court decided to hear oral testimony from the parties to the transaction, so as to put the court in the position of said parties at the time the transfers were made; not for the purpose of reading into those assignments or contracts any new conditions, or varying or changing their meaning, but for the purpose of ascertaining what the parties themselves meant by the terms used in the written bills of sale executed. For this purpose the court heard the oral testimony of Charles Baltz and George H. Wessling, the former the president of the Charles Baltz Company, and Wessling, the former the president of the Charles Baltz Company, and the latter the bookkeeper. Some of the original books of the Charles Baltz Company were offered, and entries therein relating to the various transactions pertaining to this contract were read and offered in evidence. Depositions of members of the firm of A. S. White & Co. were also read. All this testimony was heard by the court for the sole purpose of enabling it to intelligently construe the bills of sale or assignments upon which the plaintiff relied to establish its right and title to the claims upon which its suit was based.
After such testimony was heard, the defendant moved the court to direct the jury to return a verdict for the defendant, for the reason that the written assignments referred to did not in fact transfer to the plaintiff the claims sued upon in the first and second causes of action. It appears from said testimony, in addition to the facts already stated, that before the assignment of March 14, 1890, from the Charles Baltz Company to A. S. White & Co. was made, Mr. Ulric King one of the said firm of A. S. White & Co., made a detailed examination into the assets of the Charles Baltz Company, and estimated their value as closely as he could from the information before him. Mr. King, in his deposition, states that after making this careful examination of the books...
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