John Ainsfield Co. v. Rasmussen
| Decision Date | 14 July 1906 |
| Docket Number | 1688 |
| Court | Utah Supreme Court |
| Parties | JOHN AINSFIELD CO. v. RASMUSSEN |
APPEAL from District Court, Weber county; J. A. Howell, Judge.
Action by The John Ainsfield Company against O. D. Rasmussen. From a judgment for plaintiff, defendant appeals.
REVERSED AND NEW TRIAL ORDERED.
Henderson & MacMillan for appellant.
APPELLANT'S POINTS.
These bills of lading represented the goods. The defendant could not secure the goods from the railroad company without the presentation of the receipt (the bill of lading) for the goods and when plaintiff accepted the bills of lading without returning them to defendant it thereby constituted an acceptance of the goods from defendant, and the instruction requested by defendant should have been given to the jury. (Pollard v. Vinton, 105 U.S. 8.)
So the Supreme Court of Montana, in speaking upon this subject says:
(Bank v. McAndrews, 5 P. 880-881; McKelvey v. Perham, 79 P. 254; Walsh v. Blakely, 9 P. 809; Mercantile Co. v. Fussy, 39 P. 738, 48 Am. St. Rep. 698; Herbert v. Winters, 39 P. 906; Salmon v. Brandmeirer, 93 N.Y.S. 271.)
Should the carrier deliver these goods to any other person than the one named in the bill of lading, it would be liable to the party named in the bill. (Weyard v. Railroad [Iowa], 39 N.W. 902.)
A jury should not be permitted to determine a case upon its own opinion as to the justice between the parties, without even attempting to follow the evidence or the instructions of the court.
N. J. Harris for respondent.
RESPONDENT'S POINTS.
Appellant's counsel contends that the court erred in refusing to give the following instructions:
"If the evidence is equally balanced your verdict must be for the defendant, no cause of action." The case of Hickey v. Railroad Co., 29 Utah 392, 82 P. 29, is decisive on this point.
The fact that the jury found for plaintiff without interest would not vitiate the verdict. If plaintiff is entitled to interest the court could have amended the verdict, even after the discharge of the jury, so as to make it include interest.
A variance is not material unless defendant is actually misled thereby. (Rev. Stat. 1898, sec. 3001.)
And on appeal the court will regard the complaint as amended to conform to the proof. (Wyhart v. Pennington, 50 P. 413; Burgess v. Helm, 51 P. 1025.)
The jury having determined the issues in this case from all the evidence, there being a conflict of testimony, this court will not disturb their finding. (Pratt v. Clawson, 7 Utah 254; Slater v. Cragun, 7 Utah 412; Wild v. Union Pacific [Utah], 63 P. 886.)
STATEMENT OF FACTS.
Plaintiff brought this action to recover from the defendant the sum of $ 545.25, alleged to be due on an express contract for goods sold and delivered. The complaint contains two causes of action. In the first cause of action it is alleged that between June 1, 1903, and November 1, 1903, at Ogden, Utah plaintiff sold and delivered to the defendant, at his request, a certain stock of books consisting of ladies' cloaks, skirts, and suits, and that the agreed price to be paid therefor was $ 283. The allegations in the second cause of action are the same as those in the first, except that the goods, at the request of defendant, were shipped and delivered to him at Rock Springs, Wyoming, and that defendant agreed to pay therefor the sum of $ 262.25. The defendant answered denying each and every allegation of the complaint, and pleaded as an affirmative defense a breach of the contract under which plaintiff claims to have shipped the goods, in that the goods were not shipped until long after the time agreed upon and thereby were not received by defendant until the season for the selling of this class of goods had almost closed, and that they came too late to be of ready sale. It is further alleged that the goods were shipped to the defendant as samples from which to select a line of goods if he so desired; that he had permission to dispose of the goods, or such portion thereof as he might be able to sell in the usual course of trade; and that it was further agreed that defendant might, at any time, if he so desired, reship to plaintiff the unsold portion of said goods. There is a sharp conflict in the evidence on the issues raised by the pleadings, but it is not necessary to review in detail the facts in the case, because the errors assigned relate only to the instructions given by the court and the refusal of the court to give certain requests asked for by the defendant. From a verdict rendered by a jury and judgment entered thereon by the court, in favor of plaintiff, for the sum of $ 390.62, defendant has appealed to this court.
McCARTY, J., after making the foregoing statement, delivered the opinion of the court:
Defendant assigns as error the refusal of the court to instruct the jury that, "if the evidence is equally balanced, your verdict must be for the defendant, no cause of action." One of the defenses set up by defendant in this case was the alleged failure of plaintiff to ship the goods mentioned as agreed upon at the time they were ordered, and that they arrived too late for the fall trade, and defendant was thereby unable to dispose of them. This was new matter. The burden of proving the issue raised by it was upon the defendant. As the foregoing request is not limited or confined to the issues made in the allegations of the complaint the jury might have been misled thereby and applied it, had it been given, to the issues raised by the affirmative matter in the answer as well as to the issues of the complaint. Therefore the court did not err in refusing to grant it. (Hickey v. Rio Grande Western...
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