Mette & Kanne Distilling Co. v. Lowrey
| Decision Date | 22 May 1909 |
| Citation | 101 P. 966,39 Mont. 124 |
| Parties | METTE & KANNE DISTILLING CO. v. LOWREY et al. |
| Court | Montana Supreme Court |
Appeal from District Court, Silver Bow County; Jeremiah J. Lynch Judge.
Action by the Mette & Kanne Distilling Company against Thomas M Lowrey and another. From a judgment for defendants, plaintiff appeals. Affirmed.
Binnard & Rodger, for appellant.
Jas. E Murray, for respondents.
This action originated in a justice's court of Silver Bow county, and was brought to recover from King & Lowrey, copartners, $182.18, balance alleged to be due on account. The complaint alleges: That the plaintiff, at Butte, Montana, on the _____ day of October, 1905, sold to defendants, and thereafter delivered to them, at their request, f. o. b. St. Louis, Mo., two barrels of Meadeville rye whisky, one barrel of California sherry, and one barrel of port wine; that defendants agreed to pay for the same the sum of $258.31 on or about January 9, 1906, but that they have not paid any part of said sum, except $76.13, leaving the said balance unpaid. The answer denies generally all the allegations of the complaint. In the justice's court plaintiff had judgment. The defendants appealed to the district court. Pending the appeal the defendant King died. Defendant Lowrey, having been appointed executor of his will, was by an order of substitution by the district court made defendant in his representative capacity also. The trial in that court resulted in a verdict and judgment for defendants. Plaintiff has appealed from the judgment and an order denying it a new trial.
The goods in controversy were ordered on October 5, 1905, by defendant Lowrey for the firm of King & Lowrey, who were conducting a saloon in Butte, through one Ambs, a traveling salesman in the employ of plaintiff. They were to be shipped at once and, as the parties understood, f. o. b. at St. Louis; the plaintiff delivering the bill of lading to the defendants. There is no dispute but that goods, including the items named in the order and ostensibly of the brand and quality specified, were shipped by plaintiff on October 9, 1905, and were received by King & Lowrey, apparently in good order, on October 18th and properly stored in their cellar. The barrels were then all apparently in the same condition as when shipped. Nor is there any controversy touching the quality of the wines. They were paid for at the time the bill fell due and are not involved in this case. Some time after the whisky was received, and after it had been allowed to settle so as to be fit for use, no one in the meantime having had access to the cellar but Lowrey and the employés of the place, the barrels were opened, whereupon the barkeepers discovered that the whisky was of an inferior quality. Lowrey thereupon, on December 6th, wrote the plaintiff as follows: Considerable correspondence thereafter took place between the parties; the plaintiff insisting that it had filled the order properly by shipping Meadeville rye whisky, and that, if there was anything wrong with it, this condition was due to tampering by some one, probably the employés of King & Lowrey, after it had been received. Lowrey insisted that the whisky was not Meadeville rye whisky, and finally notified the plaintiff that the firm would not pay for it and that it was held subject to plaintiff's order. The issue made in the evidence at the trial was whether the whisky shipped by plaintiff was of the brand and quality ordered, and this was the only question submitted to the jury. The trial was had upon the theory that the contract was an entirety for the sale of the whisky only.
The assignment is made in appellant's brief that the evidence is insufficient to sustain the verdict, but in the portion of it devoted to the argument no reference is made to the assignment. We assume therefore that this assignment was abandoned, and notice those only upon which appellant relies.
1. Assuming that the evidence conclusively shows that goods of the kind and quality ordered were delivered to the common carrier at St. Louis, appellant insists that the title then passed to King & Lowrey, and that any loss or damage due to subsequent change in their condition must be borne by the latter. The rule contended for by appellant is elementary. Mechem on Sales, § 739. In Wheelhouse v. Parr, 141 Mass. 593, 6 N.E. 787, the rule is stated thus: "When goods ordered and contracted for are not directly delivered to the purchaser, but are to be sent to him by the vendor, and the vendor delivers them to the carrier, to be transported in the mode agreed on by the parties or directed by the purchaser, or when no agreement is made or direction given, to be transported in the usual mode, or when the purchaser, being informed of the mode of transportation, assents to it, or when there have been previous sales of other goods, to the transportation of which in a similar manner the purchaser has not objected, the goods, when delivered to the carrier, are at the risk of the purchaser, and the property is deemed to be vested in him, subject to the vendor's right of stoppage in transitu." It is recognized by the courts generally. Wetzel v. Power, 5 Mont. 214, 2 P. 338; First National Bank v. McAndrews, 5 Mont. 328, 5 P. 879, 51 Am. Rep. 51; Walsh v. Blakely, 6 Mont. 194, 9 P. 809; Willman Mercantile Co. v. Fussy, 15 Mont. 511, 39 P. 738, 48 Am. St. Rep. 698; Norrington v. Wright, 115 U.S. 212, 6 S.Ct. 12, 29 L.Ed. 366; Sarbecker v. State, 65 Wis. 171, 26 N.W. 541, 56 Am. Rep. 624; Krulder v. Ellison, 47 N.Y. 36, 7 Am. Rep. 402; 24 Am. & Eng. Ency. Law (2d Ed.) 1061; Benjamin on Sales (7th Ed.) 693. Respondent does not contend that the rule is otherwise; but the question here is, not whether plaintiff delivered goods to the carrier for King & Lowrey, but whether it delivered the goods of the particular description ordered, to wit, two barrels of Meadeville rye whisky. Having based its claim upon the express contract, the plaintiff was bound to show by a preponderance of the evidence that it had complied with its engagement, or be cast in the action, for, although it showed that it delivered other goods of the same general character, but of a different quality or description, this was not proof that it had delivered the particular quality of goods ordered. A failure to deliver the goods ordered is a failure to make delivery according to the contract, which precludes recovery upon it. Schouler on Personal Property, 1209; Benjamin on Sales (7th Ed.) 600; Mechem on Sales, § 1154. The carrier is the bailee of the purchaser for the purpose of accepting delivery, but not to determine that the goods are in quality and description such as the...
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