Irving v. Shethar

• Decision Date: 26 January 1899
• Citation: 71 Conn. 434,42 A. 258
• Court: Connecticut Supreme Court
• Parties: IRVING v. SHETHAR et al.

42 A. 258

71 Conn. 434

IRVING

v. SHETHAR et al.

Supreme Court of Errors of Connecticut.

Jan. 26, 1899.

Andrews, C. J., and Torrance, J., dissenting.

Appeal from court of common pleas, Fairfield county; Howard J. Curtis, Judge.

Action by Jacob G. Irving against Edward H. Shethar and another. There was a judgment for plaintiff, and defendants appeal. Reversed.

The action was originally brought against Hill and Shethar. Before trial, Hill was dropped as co-defendant, and Sanford was cited in, and appeared as co-defendant. The complaint consisted of two counts, but, as the verdict was in favor of the defendants upon the second count, it is unnecessary to notice it further. The first count is the common count for goods sold and delivered, except that it alleges that the goods specified in the plaintiff's bill of particulars "were sold and delivered to said Shethar & Sanford through their agent, R. M. Hill." The agent here named is the person who was dropped as co-defendant. Under this count a bill of particulars of the goods claimed to have been sold and delivered was filed, amounting to $249.51. The answer was a general denial. On the trial of the case the plaintiff claimed to have proved that he sold and delivered the goods in question to the firm of Shethar & Sanford upon the personal direction of Shethar to the plaintiff "to deliver any goods ordered by those in charge of the John W. Green Factory, so called, until he notified him to the contrary"; that the plaintiff was not notified to stop furnishing goods to said factory while said bill was being contracted; and that said factory, during the period in which said goods were ordered, was conducted by Shethar & Sanford as principals, and that Hill, who had personal charge over said business, was merely their agent. The defendants claimed to have proved that Shethar never directed plaintiff to deliver goods as claimed by the plaintiff; that Shethar merely told the plaintiff that he would be responsible for goods purchased by Hill for use in said factory during one week; that the business conducted at said factory was the business of Hill, and Shethar & Sanford had no interest therein; that the business carried on there by Hill was the manufacture of hats; that Hill succeeded Green there in this same business; and that the defendants, as commission merchants, had sold for Green the product of this factory. On the trial, Danielson, the bookkeeper of the defendants, was put upon the stand by them, and testified to the accounts kept by the firm with Hill and Green, and showed the accounts in the original books, and testified that the accounts were kept as all commission accounts are kept. He was then asked whether Hill's account and Green's account had been kept in the same way. This was claimed as tending to show the relation of the firm, as commission merchants, to the factory. This question was objected to and excluded. The defendants had offered evidence, which was admitted, to show that the business carried on at the factory by Hill after Green went out of business was Hill's business, and that the defendants merely sold his output, as commission merchants. As tending to prove this, the court permitted the defendants to show all the negotiations that had taken place between themselves and Hill, which had resulted in his taking the factory, and constituting them his agents to sell on commission. As further evidence tending to prove this state of facts, the defendants offered to show by Mr. Shethar, as a witness, that Hill at other times prior to the negotiations aforesaid, and without reference to this factory, had asked them whether, if he started in business, they would take his output to sell on commission. This evidence the court, upon objection, excluded.

The parts of the charge material to the questions with reference to the charge raised upon the appeal are these:

"In this action, gentlemen, Mr. Irving sues the firm of Shethar & Sanford to recover the price of goods which he claims to have delivered to them upon the order of R. M. Hill. * * * Now, in the first place, Mr. Irving claims, in respect to his bill for $249.51, that he sold those goods to Shethar & Sanford upon the credit of Shethar & Sanford; the goods being ordered by Mr. R. M. Hill. That is his first claim. And I assume that his second claim would be, if you find that that claim is not true, that the business conducted by R. M. Hill was the business of Shethar & Sanford, and that, therefore, those goods were sold to them, although sold in the name of R. M. Hill, because R. M. Hill stands merely for Shethar & Sanford; R. M. Hill Hill being their agent in the conduct of the business. So, then, there are those two distinct claims. Now, as to the first claim, Mr. Irving testifies that in August, 1895, Mr. Hill, Mr. Green, and Mr. Shethar came to his place of business in Danbury, and inquired about goods which they desired to get,— goods for the use of the factory which has been known as the 'John W. Green Factory'; that Mr. Shethar questioned him about the price of goods, and told him that Mr. R. M. Hill was going to have charge of that factory. Mr. Irving states that, as these gentlemen were leaving his office, he called Mr. Shethar back, and told him that the matter, as it then stood, from what he had already heard, was not quite satisfactory to him, and he wished to know who was to pay for the goods that were sent there to that factory. Mr. Irving testifies that he said to Mr. Shethar, in substance, 'I would like to know to whom to look for payment for goods sent to that factory.' Mr. Shethar said, 'You may deliver any goods that may be ordered, until I notify you to the contrary.' And then Mr. Irving says that he said to Mr. Shethar that would be perfectly satisfactory, Shethar & Sanford were good enough for him, and that Mr. Shethar said some word—'Thank you'—in acknowledgment of this statement, and that thereupon he (Mr. Irving) accepted orders from Mr. Hill, selling the goods upon the credit of Shethar & Sanford, and basing that action upon this statement of Mr. Shethar, which I have already read to you; that he entered the charges in his book against R. M. Hill. And he states that he made those charges against R. M. Hill because it had been stated to him that Mr. R. M. Hill was to have charge of the factory. Now, the fact that those entries were made against R. M. Hill, of course, is evidence tending to show that the credit was given to R. M. Hill; but the fact is not conclusive against Mr. Irving. If you find it to be true that this conversation took place as Mr. Irving details it, and that Mr. Irving thereupon delivered goods upon the credit of Shethar & Sanford, and made these charges upon his book against R. M. Hill, as he says, merely because Mr. R. M. Hill was in charge of the factory there, —if you find those facts to be true, then those facts would explain, and are proper for you to consider as explaining, this entry in his books against R. M. Hill, and your verdict should be for the plaintiff, Mr. Irving, upon that claim.

"Now, Mr. Shethar, on the contrary, claims that the conversation that he had with Mr. Irving upon that day was entirely different from that which has been detailed here by Mr. Irving. He states that Mr. Irving called him back, as Mr. Irving stated, although he previously states that, in the particular conversation when Mr. Green and Mr. Hill were present, he stated to Mr. Irving that Mr. Hill was to carry on that business in his own name hereafter, and that he stated that specifically; that, when Mr. Irving called him back, and Mr. Irving said he was not quite satisfied in reference to the selling of the goods, that he stated to Mr. Irving that he would guaranty that account for one week, and that, if not paid, he was to be notified. If you find, gentlemen, that that statement of the conversation is true, and that Mr. Shethar told Mr. Irving that Mr. R. M. Hill was to carry on the business in his own name, and that he would merely guaranty that bill for one week, and that he was to be notified at the end of the week, that does not authorize Mr. Irving to go on charging goods after the week against the firm of Shethar & Sanford, or selling upon their credit and charging them to Mr. R. M. Hill. * * * So, gentlemen, your finding upon that claim of Mr. Irving's will depend upon whether you find Mr. Irving's statement of that transaction more probably true than the statement of Mr. Shethar as to what took place there, and as testified to by him and Mr. Hill. And if you find that, as I said before, Mr. Shethar's statement is more probably true of what took place there, or one claim seems equally true with the other, then Mr. Irving has not established that claim by a fair preponderance of the evidence. * * *

"Now, Mr. Irving, as I understand it, claims further, even if you should find that he has not established that first claim, that the business conducted in the John W. Green Factory at this time was in fact the business of Shethar & Sanford, and not the business of R. M. Hill. * * * Now, upon the defendants' side of this particular claim, Mr. Shethar has testified as to what relations the firm of Shethar & Sanford bore to R. M. Hill in this matter. He states that after this factory was turned over to them, at the solicitation of Mr. Hill, they decided to let Mr. Hill rent the factory, to sell him the material they had upon hand there, I believe, to the value of $3,000, and to let him carry on the business, they to handle all the product of the business, and to guaranty the accounts for goods sold by them, for which they were to receive 15 per cent. commission for handling the product and guarantying such accounts,...