Magnes v. Sioux City Nursery & Seed Co.

• Decision Date: 08 January 1900
• Citation: 14 Colo.App. 219,59 P. 879
• Parties: MAGNES v. SIOUX CITY NURSERY & SEED CO.
• Court: Colorado Court of Appeals

59 P. 879

14 Colo.App. 219

MAGNES v. SIOUX CITY NURSERY & SEED CO.

Court of Appeals of Colorado

January 8, 1900

Appeal from Arapahoe county court.

Action by Peter Magnes against the Sioux City Nursery & Seed Company. From a judgment in favor of defendant on a counterclaim, plaintiff appeals. Reversed.

Oliver B. Liddell and Edward A. Silberstein, for appellant.

H.B Johnson and Ralph W. Smith, for appellee.

BISSELL P.J.

Five trials in nisi prius tribunals and two appeals have not yet sufficed to determine the right of this controversy over the sale of some fruit trees of the agreed price and value of $200. We had hoped to be able on this hearing to finally conclude this litigation, not only in the interests of the litigants, but in the interests of the people. Unfortunately the case was not properly resolved, nor the rules of law which govern the rights of vendor and vendee in the sale of personal property observed by counsel or by the trial court. The questions now suggested are wholly foreign to those heretofore presented to us, and the one on which the case now turns is widely different from that heretofore argued and considered. We are very frank to say the abstract does not contain the material requisite to this decision. We should have been quite at liberty to affirm the judgment, but a doubt respecting the main legal proposition argued led to an inspection of the record to ascertain whether the entire proof really justified the affirmance. This brought the whole evidence before us, and this has led to a conclusion respecting the judgment adverse to its legality, and we have concluded to decide the appeal thereon. The first two decisions are to be found in 1 Colo.App. 45, 27 P. 257, and in 5 Colo.App. 172, 38 P. 330. Therein the sole question argued and determined related to the authority of an agent authorized to take orders for the future delivery of stock to bind his principal by the acceptance of chattels in payment for the stock sold when he had no specific or implied authority to this end. This is all there is in either of the two decisions, the only proposition discussed, and the only point decided. It will be wise, and it is necessary, to give a little further history of the case than can be gathered from the statements in either of these opinions. This comes from the difference in the three judgments and from the additional facts which we are compelled to consider in arriving at our conclusion. The suit was begun in a justice court, and appealed to the county court. It was brought by Magnes to recover of the Sioux City Nursery & Seed Company $200 as part of the price of two mares which he had sold one Wheeler, who acted as the agent of the company in soliciting orders for nursery stock. The balance of the purchase price was paid by an order on the company. Magnes had given orders for nursery stock. The trees, vines, etc were sent to Denver for delivery to him on his order. There were two orders; one for $150, and the other for $50. According to the terms of these written orders, Magnes was bound to pay cash on delivery. Refusing to receive and pay for the trees because the company refused to recognize Wheeler's authority to accept the horses in payment, the stock was sold, and, bringing only a small part of the purchase price, the company counterclaimed in this suit the difference between the agreed price of $200 and that received on the sale, $25. Heretofore Magnes always had judgment. On the first two appeals the cause was reversed. On the third trial the case was submitted to the court on the evidence taken on the preceding trial and contained in the bill of exceptions theretofore prepared, O.K.'d by counsel, and on which the appeals were heard. The third judgment, which was in favor of the nursery company, was set aside by the trial court, and a new trial granted. On the fourth trial counsel for the nursery company attempted to produce the bill of exceptions or transcript of testimony, and offer it as the testimony of the witnesses. There seems to have been a change of counsel in the meantime, and strenuous objections were offered to the introduction of this bill. The basis of the offer was largely built on the fact that there was an understanding or stipulation between the parties which authorized its use, and the further fact that the witnesses were without the jurisdiction of the court. Respecting the latter point, counsel testified that the witnesses, so far as he knew, lived in Sioux City, and had always lived there, and that it was the home of those who had theretofore been produced. We find, however, in the record and in the old bill of exceptions, two stipulations. By one of them it is agreed that the transcript of the testimony taken on the first trial shall be made a part of the bill of exceptions. Then follows the testimony. At the commencement of the bill of exceptions on the second trial in the county court we find a stipulation which, in effect, is an agreement between counsel in open court that the transcript of the evidence taken on the former trial shall be considered as evidence on this trial without a re-examination of witnesses, and, in case of appeal, that the same may be embodied in the bill of exceptions. On these two stipulations counsel for the company relied, and on the faith of them attempted to use this transcript. This he was permitted to do over the objection and exception of the present appellant.

We now come to the matter which we have dug out of the bill, and which we use as the basis of this decision. The stock came by rail, and reached Littleton on Saturday, the 3d of April. Of this Magnes was advised. There were no instructions to the railroad company to deliver the stock except on payment of the contract price. Magnes refused to pay, and came to Denver the ensuing Monday, and interviewed one Michaels, who was the delivering agent of the nursery company. He demanded the stock, and Michaels announced his readiness to deliver, but coupled with this readiness a demand for $200. Magnes absolutely refused to pay this sum, and said he would neither receive the stock nor pay for it, and the only condition on which he would accept it would be its delivery and the allowance by the company of the unpaid value of the two horses which he had sold Wheeler, amounting to $200. The company refused to recognize Wheeler's authority to take horses in payment for stock, would give Magnes no credit on his account or on the bills for the unpaid price, and thereupon he refused to receive the goods. The trees had been reshipped to Denver, and stored in a barn. They were shown to Magnes, who was told that he could have them on the payment of the price. He substantially said he would under no circumstances receive the stock unless it was delivered in payment of the purchase price of the horses. The stock was kept, so far as we can discover from the testimony, until the ensuing Monday, when it was sold by the agent. The circumstances under which the trees were sold were not shown. The witnesses were silent about it except to say that the stock was finally sold out because it was stored in a barn, and they had to pay rent for the barn, and wanted to relieve themselves of that liability. Michaels said the stock was sold for what they could get. It is nowhere and in no way stated how, when, or to whom, and whether at public or private sale, the stock was disposed of. We are left entirely in the dark as to the conditions of the sale, or as to the existence or nonexistence of the necessity for an immediate sale. It is true, the transcript contains evidence to the effect that the trees were liable to spoil, and had commenced to suffer, and there was some evidence to the point that the stock could not be profitably taken back and set out, and, as Johns says, the trees would not pay for the freight if returned. Just what the witnesses mean by these statements is not clear. There was no attempt to put the trees in the ground, and preserve them for future sale, nor is there evidence whether this could be safely done. There is none to the point that an effort was made to keep the trees in order to find some one to whom they might be profitably sold. We have fairly and fully, and, we believe, faithfully, reproduced and condensed in substantial form the situation. To this situation we must now apply the law.

The appellant presents but two points on which he relies for a reversal. The first respects the use of the old bill of exceptions on the last trial, and the other the necessity of notice to the vendee of the time and place of sale if the vendor would hold him liable for the difference between the contract price and the amount realized on the resale. We shall determine both of these propositions, but put our reversal on a totally different ground. The exception to the use of the old transcript of testimony or bill of exceptions is, in our judgment, not well taken. The case can in no manner be brought within the decision in the case of Emerson v. Burnett (Colo.App.) 52 P. 752. The majority of the court held that the evidence of a witness who has removed from the state, which was preserved in a bill of exceptions or by stenographer's notes, might be used on a subsequent trial. The reasons assigned are not at all applicable to the present situation. In this case the witnesses were nonresident, and it was always open to counsel to sue out a dedimus, and take their testimony. There was no sudden removal from the jurisdiction. The witnesses had already been brought here to testify, and none of the considerations which permit the use of transcripts of testimony of absent witnesses would prevail or control. While this is true, we are quite of the opinion that the nursery company had a right to use the...