Hiksch v. C. W. Leatherbee Lumber Co.

• Decision Date: 08 June 1903
• Citation: 55 A. 645,69 N.J.L. 509
• Parties: HIKSCH et al. v. C. W. LEATHERBEE LUMBER CO.
• Court: New Jersey Supreme Court

55 A. 645

69 N.J.L. 509

HIKSCH et al.

v. C. W. LEATHERBEE LUMBER CO.

Supreme Court of New Jersey.

June 8, 1903.

(Syllabus by the Court.)

Error to Circuit Court, Hudson County.

Action by Charles S. Hirsch and others against the C. W. Leatherbee Lumber Company. Judgment for plaintiffs, and'defendant brings error. Affirmed.

Argued November term, 1902, before GUMMERE, C. J?and VAN SYCKEL, FORT, and PITNEY, JJ.

James A. Gordon, for plaintiff in error.

James B. Vredenburgh, for defendants in error.

PITNEY, J. This is an action upon contract, in the nature of an action of assumpsit, brought to recover the market value of 8,435 railroad ties. Plaintiffs had judgment below. Reversal is sought for alleged trial errors.

Plaintiffs were wholesale lumber dealers, having their principal office in New York City. Defendant was in the same business, with headquarters at Boston. Both parties conducted a part of their business in Brunswick, Ga., where they severally had wharves for the receipt, shipment, and storage of ties and other lumber. One Allen was the plaintiffs' agent in Brunswick. The defendant's business there was in charge of a man named Johnson and an assistant named Hill.

The transaction that gave rise to the present controversy took place in December, 1900, and the following January. In the former month the plaintiffs had on hand at their wharf in Brunswick about 40,000 ties, among which were those in question. The latter were known as 6x9 ties, 8 feet long; some were sawn, some hewn.

During the month of December certain correspondence took place between the plaintiffs in New York and a man named Danforth, then residing and doing business in Brunswick, resulting in an agreement for the sale of the 8,435 ties in question at the price of 36 cents each, terms net cash on delivery; the ties to be taken on or before January 10th, and to be paid for on that date whether taken or not. There was some evidence tending to show a subsequent modification of the terms to this extent: that the plaintiffs were to be content with payment of 80 per cent. of the purchase price on January 10th, if the ties were not taken on that date. Danforth agreed to purchase on these terms, but in the correspondence held himself out as acting for other parties not named. The arrangement was that the ties were to be loaded on board vessel from the plaintiffs' wharf. All these details were concluded by correspondence on or before December 24th. Nothing further of importance transpired until January 10th, the ties meanwhile remaining upon the plaintiffs' wharf. On the date just mentioned Danforth wires them, saying: "It makes great difference to us on account of insurance to pay to-day for ties. We feel confident that vessel arrives few days. Can you delay a short time on account this fact. Ties for Leatherbee." On the same day Danforth wrote to the plaintiffs confirming this telegram, adding: "The C. W. Leatherbee Lumber Co.'s agent here, for whom I secured the ties, is willing and anxious to make payment whenever required, but has investigated the matter of insurance and I have wired you as above. It is only a matter of a few days to you, as the sale is a bona fide one, and the insurance question is the only stumbling block." On the 11th the plaintiffs answered Danforth's telegram by wire and letter, stating, in effect, that the ties were covered by a policy held by plaintiffs, under which Danforth could collect in case of loss, and requesting him to pay the Brunswick office for the ties. According to the testimony of the plaintiffs' agent, Allen, who was called as a witness in their behalf, a conversation took place in Brunswick on January 12th between him and Johnson, the defendant's agent, in which Allen mentioned that he had been advised by Danforth, and had gathered from what Danforth had written to the New York office, that Danforth was negotiating for the ties for the Leatherbee Lumber Company, and that the ties were to be theirs. Allen therefore called upon Johnson for 80 per cent. of the value of the ties, the terms of the sale being (as he said) net cash on delivery, or 80 per cent. of the value of the ties on January 10th if not delivered. Allen also testified that Johnson told him he would give him a check in the name of the C. W. Leatherbee Lumber Company; that an estimate was made between them as to the amount to be thus paid, but that the check was not given because of the absence of Danforth, whose presence at the settlement both agents seem to have considered essential by reason of his interest in the transaction. The payment in question was therefore deferred, and was not at any time made.

On January 13th the vessel on which it was intended to ship the ties arrived off the plaintiffs' wharf. Allen testified that he and Johnson boarded her together on that day, and endeavored to make an arrangement about giving her a berth at the dock, but by reason of some difficulty in doing this the captain took his vessel to the wharf used by the defendants. An arrangement was subsequently made between Allen and Johnson for the transfer of the ties by rail from the plaintiffs' wharf to that of the defendant, and this was done between the 18th and the 23d, the ties being at the same time loaded upon the vessel.

Allen testified that on the 21th, at defendant's wharf, he requested Johnson to make payment for the ties, and that Johnson refused to settle, in the absence of Danforth. At the same time Allen left with Johnson a bill made out in the name of the plaintiffs against Danforth for the 8,435 ties, at 36 cents each, amounting to $3,030.60. At this interview, as Allen testifies, Johnson told him that he himself expected to be away from home, and that his assistant, Hill, was authorized to make payment for the ties in his absence. Allen says that on the 20th he called again at defendant's office and found Hill there, Johnson being absent; that be asked Hill if he had paid Danforth for the ties, and Hill said he had not, but expected to do so later in the day; and that he (Allen) thereupon notified Hill not to pay Danforth, saying, in substance, that the ties were not to pass out of plaintiffs' possession until paid for, and rhat they remained the property of the plaintiffs even though the vessel had gone to sea. lie testifies that the vessel went to sea late in the afternoon of the 24th or early in the morning of the 25th,

The correspondence between the plaintiffs and Danforth was not introduced by the plaintiffs as a part of their principal case. They rested after introducing Allen's testimony to the effect that the ties were the property of the plaintiffs; that they were delivered to the defendant under the circumstances just recounted, and that they were sent to sea in a vessel controlled by the defendant; together with evidence of the market value of the ties at the time of delivery. Defendant moved for a nonsuit, on the theory that the evidence did not show a conversion, and that by rendering a bill made out in the name of Danforth after the ties had been delivered to the defendant the plaintiffs had waived their rights as against the defendant. This motion was properly, refused, even as the case then stood. There was evidence from which the jury would have been justified in finding either that the ties were sold and delivered by the plaintiffs to the defendant (Danforth's purchase not having as yet clearly appeared), or that the ties had been wrongfully converted by the defendant. Upon the theory of conversion, the plaintiffs were entitled to waive the tort, and recover the market value of the property in an action of assumpsit. If one who has rightfully converted the personal property of another to his own use is held bound by an implied promise to pay to the owner its reasonable value, certainly he who has wrongfully converted such property must be held to the same implied undertaking. To permit him to deny the promise would enable him to take advantage of his own wrong. The tort feasor, in such circumstances, may, at the option of the party injured, be treated as having purchased the goods in question without stipulation as to their price, and be held liable in assumpsit for their market value. Moore v. Richardson (N. J. Err. & App.) 53 Atl. 1032.

Shipment of the ties upon a vessel bound to sea was sufficient evidence to go to the jury upon the question of conversion.

The making out of a bill in the name of Danforth was not a conclusive circumstance, and, at most, raised a question for the jury as to its effect under the other circumstances of the case.

The defendant introduced evidence tending to show that Danforth in purchasing the ties from plaintiffs was not acting as agent for defendant, but that defendant had purchased the ties from Danforth at some time between December 15th and January 1st, and that its agent. Johnson, paid Danforth for them, in full, on the 26th of January, after the sailing of the vessel. Roth Johnson and Hill were called as witnesses. Johnson asserted that the ties were delivered to the defendant by Danforth, but this was a mere assertion of a conclusion unsupported by fact, for he confirmed the plaintiffs' evidence to the effect that the property was in plaintiffs' possession at the time he purchased them from Danforth; that the delivery was made directly from plaintiffs' wharf to that of the defendant through the Instrumentality of Allen; and that prior to this delivery he (Johnson) had arranged to make an advance to the plaintiffs on account of the ties. He testified that at the time this arrangement was 'made he believed the ties were insured in the name of the plaintiffs, and that he knew the plaintiffs had not been paid for them. He denied that he had promised to pay to the plaintiffs the purchase price for the ties in full. Hill's testimony was confirmatory upon the question of the proposed advance. He denied that Allen notified him not to pay Danforth. Defendant also...