Nash v. Towne

• Decision Date: 01 December 1866
• Citation: 5 Wall. 689,72 U.S. 689,18 L.Ed. 527
• Parties: NASH v. TOWNE
• Court: U.S. Supreme Court

72 U.S. 689

18 L.Ed. 527

5 Wall. 689

NASH v. TOWNE.

December Term, 1866

ERROR to the Circuit Court for Wisconsin; the case being thus:

Towne & Washburne, of Boston, Massachusetts, bought of Nash & Chapin, of Milwaukee, Wisconsin, in February, 1863, a thousand barrels of flour, and paid for them by a sight draft. The flour was not delivered, and the purchasers, Towne & Washburne, aforesaid, brought assumpsit for the non-delivery. The declaration contained a special count, and also the common counts.

The former set forth:

'That the defendants, on the 5th of February, 1863, at Milwaukee in Wisconsin, in consideration of $5500 dollars to them in hand paid, sold to the plaintiffs one thousand barrels of flour, then at Neenah, in the said State, of the value of $5500, and agreed that they, the defendants, on the request of the plaintiffs, after navigation at Neenah aforesaid should open in the spring of 1863, and a reasonable time before the 31st day of May, 1863, would procure, furnish, or provide a steamer on which to ship said flour, and ship the same to the plaintiffs at Boston, in the State of Massachusetts, and deliver the same on such steamer at Neenah, where said flour then was, free of charge to said plaintiffs, and to be transported in the ordinary manner and with necessary and customary transshipments to the plaintiffs at Boston.'

Plea, the general issue.

On the trial, the plaintiffs offered in evidence a letter from the defendants to the plaintiffs, dated at Milwaukee, February 5, 1863, as follows:

'Your Mr. W. left here yesterday, and before going off we sold him one thousand barrels round hoop flour, Empire Mills, Iowa, free, on board steamer at Neenah, for $5.50, for which find bill inclosed. We have the flour stored and insured, . . . and will value on you at sight for the amount.'

Inclosed in that letter was this bill of sale:

'Messrs. Towne & Washburne,

Bought of Nash & Chapin, general commission merchants, 1000 barrels of flour, Empire Mills, Iowa, round hoop, 5 1/2, $5500.

Received payment, sight draft,

NASH & CHAPIN.'

This evidence was objected to by the defendants, because it tended to prove a different contract from the one declared on. The court, however, overruled the objection.

The plaintiffs then offered the sight draft with evidence of its payment, and that it was drawn in payment of this flour. This, too, was objected to as variant from the declaration; but the objection was overruled.

The plaintiffs then read two warehouse receipts, one dated January 31st, 1863, as follows, and the other February 5th, 1863.

'NEENAH, January 31st, 1863.

'Received in store of Nash & Chapin, five hundred barrels Empire, Iowa, r. h. flour, to be delivered, on return of this warehouse receipt, free, on board steamer.

S. G. BURDICK.'

'Indorsed: NASH & CHAPIN.'

They then brought witnesses who proved that the defendants had allowed this Burdick to take the flour from his storehouse at Neenah, where it was stored, and to sell it to other persons (so to prove a conversion by the defendants to their own use), and that they refused to deliver it; setting up that the plaintiffs at the time of the sale of the flour agreed to take the warehouse receipts of S. G. Burdick, just above referred to, in lieu of the defendants' responsibility for the flour, and had requested the defendants to hold the receipts for them, which they the defendants had done.

In the course of proving this, they asked a witness who had inquired of the defendants, in behalf of the plaintiffs, why the flour was not delivered, &c., this question:

'What was said by the defendants, as to where the flour, described in the letter and bill, was stored; whether it had been delivered, and if not, as to why it had not been delivered?'

To the admission of that question the defendants objected that inasmuch as the plaintiffs had failed to prove the special count in their declaration, and had proved an existing contract to deliver flour to the plaintiffs, it was not competent for the plaintiffs to prove any other contract than the one set out, nor to prove a breach of such other contract under the other counts in the declaration. But the court overruled the objection.

The defendants on their side offered to prove that in selling the flour they had acted as agents for Burdick, above named, and so told the plaintiffs at the time of the sale; and that they paid over the money, the proceeds of the sale, to Burdick. This was objected to by the plaintiffs because it was conversation prior to or contemporaneous with a written contract (the bill of sale and letter), and would modify or contradict it, and alter the liability of the defendants under that contract. The objection was sustained and the ruling excepted to.

They set up also that the warehouse receipts of Burdick were accepted by the plaintiffs in lieu of their responsibility for the flour; a matter which went to the jury on the evidence.

The court charged:

1. 'That if the jury found that the plaintiffs had paid money to the defendants for a consideration which had failed, and which in equity the defendants ought to pay back, their verdict must be for the plaintiffs. And if they found that the defendants executed the bill of sale and letter or contract read in evidence, and the plaintiffs paid them for the flour specified, $5500, and the defendants afterwards failed and refused to deliver the flour when demanded, then their verdict should be for the plaintiffs for the amount paid by them and interest, unless the defendants delivered to, and the plaintiffs accepted the warehouse receipts in evidence in lieu of the flour.'

At the request of the defendants below, it also charged:

2. 'That the plaintiffs cannot recover in this cause against the defendants damage for the conversion of that flour without proof that the defendants have, after such conversion, sold the flour and received pay for it, and in that case, for only the amount actually sold, and paid for, and only the price paid to them.'

And added:

'The converse of such instruction is also true; that if the jury find from the evidence that the defendants had sold said one thousand barrels of flour, or any part of it, and had received the money therefor, or the benefit of such sale and payment thereof, then their verdict should be for the amount so received by said defendants, unless they had delivered to the plaintiffs, and the plaintiffs had accepted, the warehouse receipts as a delivery of the flour.'- Verdict and judgment having gone for the plaintiffs, the case was now here on exception to the ruling of the court admitting the testimony, and to its instructions to the jury.

Mr. Lynde, for the plaintiff in error:

I. The declaration sets out the time of delivery to have been after the opening of navigation in the spring of 1863 (April 20th, 1863), and before the 31st day of May, 1863. The utmost that can be said of the letter is, that inasmuch as the delivery must be on board steamer, the delivery should be within a reasonable time after the opening of navigation, which is a very different period. This was a variance.

Again, the declaration avers, in effect, that the plaintiff in error agreed to provide a steamer and make the shipment, and pay the charges of the warehouseman for storage and delivery to the steamer, while the letter only agrees to pay the warehouseman's charges for storage and delivery to steamer.

These papers were also inadmissible under the general counts, as they tended to prove an existing agreement to deliver flour which must be counted upon specially.¹

II. The declaration alleged a payment in cash. Proof of payment by a bill was immaterial to the issue and variant from the count.

III. The court erred in allowing the question: 'What was said by the defendant as to where the flour was stored, &c., and as to why it had not been delivered?'

The plaintiff had averred a contract to deliver flour at a future time. He had proved that a different one than the one he alleged had been made. Proving a breach of that contract would not prove the breach of his first count, nor of any of his counts.

IV. But the great error was in excluding evidence that the defendants were acting as agents in making the sale, and that the plaintiffs knew this, and that the money received by the defendants had been paid over to their principals. The court erred also in charging 'that if they found from the evidence that the plaintiff had paid money to the defendants for a consideration which had failed, and which in equity the defendants ought to pay back, then their verdict must be for the plaintiff.'

The plaintiffs had wholly failed to prove the special count. It was not competent to prove an agreement to deliver flour under the common counts. No other right of recovery is asserted except moneys had and received to recover the consideration paid. There is no contract to pay back that money between the parties. It could only be recovered in a case where the defendant had received money of the plaintiff, which ex aequo et bono he should return.²

The evidence was excluded upon the authority of a special class of cases.³ But in those cases the action was directly upon the contract; in this case it was not, and the contract here is only valuable in evidence as an admission of a fact, which admission could be contradicted or explained.

Now, when the action is brought, not upon the contract, but upon the facts and the equities growing out of them, why should not all the facts be proved? How could the jury say that the defendants ought, in equity, to pay back this money, without knowing whether the plaintiffs intended to pay and did pay their money to Burdick or the defendants; and whether Burdick or the defendants actually had the benefit of the money?

Again, the court erred in charging 'that if they found that the defendants executed and delivered the bill of sale and letter or contract read in evidence, and the...