Johnson v. Chambers
| Citation | 12 Ind. 84 |
| Parties | Johnson and Another v. Chambers and Another |
| Decision Date | 25 May 1859 |
| Court | Indiana Supreme Court |
From the Tippecanoe Court of Common Pleas.
The judgment is affirmed, with 1 per cent. damages and costs.
S. A Huff, Z. Baird, and J. M. La Rue, for appellants.
Counsel for the appellants made the following argument:
Upon the facts [as stated supra], the Court instructed the jury at the request of the appellees:
1. That a delivery to a common carrier is a sufficient delivery to the vendees.
2. That steamboats employed in carrying goods from one place to another, are common carriers.
3. That if the appellants were notified of the shipment of the glass by the Gov. Powell, and made no objection, and gave no notice of their dissent until September 16, 1856, knowing that the Latrobe was the first steamer leaving Pittsburgh, and that she was at Lafayette in April, then they waived their right of having their goods shipped on the first boat.
4. The jury may presume from the letter of September, 16, 1856, that the defendant waived all objections as to the goods not beiug shipped on the first boat, if written with a knowledge that the Gov. Powell was not the first boat leaving Pittsburgh for Lafayette.
The appellants requested the Court to give the following instructions:
1. That if the defendants ordered the goods shipped on the first boat, which was not done, and the goods have never been received by the defendants, the jury should find for the defendants.
2. Ordering goods to be shipped by the first boat, gave the plaintiffs no right to ship by any other boat; and, if the plaintiffs shipped contrary to the directions of the defendants, they cannot recover, unless they prove a delivery of the goods by them.
The first of the instructions requested by the appellants, the Court refused to give as requested, but modified it by adding the words, "unless the defendants waived a compliance with their order, or ratified the acts of the plaintiffs in shipping by another boat." The appellants excepted to the refusal of the Court to give the first instruction as requested, and also to the modification made to it.
The second instruction requested by the appellants was refused and the refusal excepted to.
To the several instructions given by the Court, at the instance of the appellees, exceptions were taken in due form.
We insist that this judgment should be reversed, The verdict is wholly unsupported by evidence--is contrary to the law applicable to the facts proven--and is the result of the misdirection of the Court below in the instructions given to the jury, at the instance of the appellees.
All that is proven of the sale and delivery of property, by the appellees to the appellants is that Johnson, of Johnson and Patton, called at the store of the appellees at Pittsburgh and verbally ordered fifteen half-boxes of glass to be shipped to the appellants, at Lafayette, by the first boat leaving Pittsburgh for the Wabash river. Not one single other act or circumstance is shown relating either to a sale or delivery of the glass. When the order was made, no act was done to identify the particular boxes of glass to be shipped no separating the articles from the other articles of merchandise in the establishment of the appellees, nothing that would have enabled Johnson and Patton to reach the articles ordered, by process of law, to obtain possession of them, nor anything that would have placed the goods at their risk, in the possession of the vendors. It was not a sale of goods such as would have been binding at the common law; and the defense against the action, to be successful, needs not the interposition of any statute of frauds. The complaint is for property sold and delivered; and is not to be sustained by evidence which neither shows a sale or delivery. "At common law," says Parsons, "if the seller makes a proposition, and the buyer accepts, and the goods are in the immediate control of the seller, and nothing remains to be done to identify them, or in any way to prepare them for delivery, the sale is complete." Pars. on Cont. 320. Under this rule there was no contract, binding on the parties, at the common law, made at Pittsburgh when Johnson was there; for the goods were not identified, nor prepared for delivery until after he had left Pittsburgh. The date of the invoice forwarded to the appellants was April 2, 1856. Johnson, who it is shown, gave the verbal order, was in Pittsburgh on the 12th of March, 1856, and only remained there one day. This makes it evident that, when Johnson left Pittsburgh, the goods ordered remained to be identified and prepared for delivery. They were thus identified and prepared on the 2d of April, 1856, for this is the date at which the appellees fix the sale. We do not pretend that the date of this invoice is material for any other purpose than to show that the sale was not complete, within the terms of the common law, when Johnson ordered the goods and left Pittsburgh.
The goods were ordered to be shipped by the first boat, and the seller had no authority to ship by any other. Ward's testimony shows that Johnson was explicit in his direction that the glass should be shipped by the first boat leaving Pittsburgh for the Wabash. The appellees admit that they did not, and could not, comply with this direction, and here, we insist that whatever contract there was in this verbal order given by Johnson, was at an end; for the appellees had no authority to ship by any other boat. Importance seems, from the evidence, to have been attached to his requirement that the glass should be shipped by the first boat, and the sequel proves that it was a condition quite essential to the purchase, so far as the appellants were concerned; for, according to the evidence, the first boat that left Pittsburgh that spring, seems to have been the only one that ever arrived at Lafayette. When the appellees ascertained that they could not ship the glass to the appellants by the first boat, as directed, the parties stood, in relation to each other, as though no order had ever been made by Johnson and Patton for the shipment of goods to them by the appellees. Even had the order been in writing, in the most certain and solemn terms, filling every requirement of our statute of frauds, still, had it required the goods to be shipped by the first boat, it could not become binding upon the appellants, unless the goods had been thus shipped. From the time, then, that the Latrobe left the wharf at Pittsburgh, on her voyage, the appellants were entirely absolved from the order made the 12th of March, 1856. This is so plain a proposition that it is unnecessary to appeal to authority to demonstrate its correctness.
What act of Johnson and Patton, subsequent to the verbal order given by Johnson, at Pittsburg, does the evidence in the case disclose, upon which they ever became chargeable for goods sold and delivered to them by the appellees? On the 2d of April, 1856, without request or authority from Johnson and Patton, the appellees shipped, on board the Gov. Powell, fifteen half-boxes of glass, and took a bill of lading, by which it was shown that the glass was consigned to Johnson and Patton, Lafayette, Indiana. A duplicate of this bill of lading, with an invoice of the goods, from the house of the appellees, was enclosed and sent by mail to the consignees. Now these acts, on the part of the appellees, were voluntary, and not in pursuance of any contract or request of the appellants. The goods thus shipped, never came to the hands of Johnson and Patton; and when, in September, nearly six months after they were shipped, the appellees presented a draft for the value of the goods, as invoiced, Johnson and Patton, because the goods had never been received, declined to accept the draft. This refusal to accept the draft, is the act upon which, by the instruction given to the jury, the appellants are to be held as having "waived their right of having the goods shipped by the first boat."
There being no contract arising upon the order of Johnson, while at Pittsburgh, and the goods having found their way into Indiana, by the voluntary shipment of them by the appellees prior to which time there was no act of the appellants to charge them, if any contract of purchase was made by them at all, it was made in Indiana with reference to goods lying in a warehouse at Terre Haute. The proof shows that the first knowledge the appellants had, that the goods were at Terre Haute, was in May or June, 1856, two or three months after Johnson was at Pittsburgh. Up to the time that they were informed that the goods were at Terre Haute, Johnson and Patton had done nothing, according to the evidence, to make them liable for goods not shipped under their order. What act of theirs, after that time, is shown by the evidence, to make the letter refusing to pay for the goods, amount to a waiver of their order, or to an assent to a new contract? In the case of Bushel v. Wheeler, 15 Q. B. 442, n., cited by the counsel on the other side, the goods had been shipped by the very vessel indicated in the direction of the buyer. They had arrived at their destination, where the buyer was to have received them, and were placed in the warehouse of the owner of the vessel, where the buyer saw them. He told the warehouseman he would not take them, but did not so inform the seller, until after the lapse of five months. The language of Coleridge, J., in that case, shows upon what grounds the Court held the contract binding. He says, . ...
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