Pac. Lumber Agency v. Nat'l Aircraft Materials Corp.
| Decision Date | 07 January 1936 |
| Citation | 182 A. 192 |
| Parties | PACIFIC LUMBER AGENCY v. NATIONAL AIRCRAFT MATERIALS CORPORATION. |
| Court | Vermont Supreme Court |
Exceptions from Rutland County Court; Fred G. Bicknell, Judge.
Action by the Pacific Lumber Agency against the National Aircraft Materials Corporation. Judgment for defendant, and plaintiff brings exceptions.
Affirmed.
Argued before POWERS, C. J., and MOULTON, THOMPSON, and SHERBURNE, JJ., and BUTTLES, Superior Judge.
William L. Scoville and George M. Goddard, both of Rutland, for plaintiff.
Webber & Leamy, of Rutland, for defendant.
The plaintiff seeks to recover the purchase price of two carloads of airplane spruce lumber, which it claims to be due from the defendant as the purchaser of the assets of the National Pulpwood Corporation, the consignee named in the bills of lading covering the shipments. Trial below was by jury. At the close of the plaintiff's case a verdict was directed for the defendant, and the plaintiff excepted.
The testimony of Perley R. Eaton and certain exhibits constitute all the evidence in the case. Eaton was the president and a large stockholder in the National Pulpwood Corporation, which owned a mill at East Dorset, Vt. The two carloads of lumber were ordered from the plaintiff by Eaton, on October 12, 1926, and December 9, 1926, respectively, with directions to send them to the Pulpwood Company at East Dorset, as consignee. Accordingly the plaintiff shipped the material, with the bills of lading made out to the Pulpwood Company, as consignee, and invoiced the shipments to Eaton. The invoices stated in each instance that the merchandise was sold and charged to Eaton, and shipped to the Pulpwood Company, and, with regard to the shipment of December 9, the terms were cash less 2 per cent. "after sale to & unloading by my customer," (quoting in this respect the wording of the order.) The first shipment was ordered by telegraph; the second by a printed and typewritten order blank, bearing the heading "Perley R. Eaton, Wholesale Lumber Merchant * * * dealer in all kinds of Pacific Coast Lumber," and contained a request that it should be arranged that each connecting railroad should advise Eaton when the car passed their division points, "so I can be informed where car is all the time."
Eaton had a billing in transit privilege at East Dorset whereby he was enabled to re-sort the rough lumber at that point and forward it on the same bill of lading without extra charge, except the railroad company's charge for the stop-over, and the shipments were billed to the Curtis Company in accordance therewith by the Pulpwood Company's mill superintendent. While the first carload was in transit, Eaton sold it to the Curtis Airplane & Motor Company, and by virtue of his billing in transit privilege, it was sent on from East Dorset, without unloading, to the purchaser at Garden City, Long Island, and Eaton received the price agreed upon. The second carload was disposed of, and the purchase price received, in the same manner, except that Eaton obtained the Curtis Company as a customer before ordering it. Eaton gave the plaintiffs his personal notes for the lumber, but these notes appear to be unpaid. The Pulpwood Company was not in the business of manufacturing airplane parts, and had never done so, although the machinery at its mill in East Dorset could have been used for this purpose. On or about October 1, 1928, the National Aircraft Materials Corporation was organized, Eaton being its president and a large stockholder. On October 8, 1928, Pulpwood Company deeded to the Aircraft Company its mill and equipment at East Dorset, the conveyance being executed by Eaton as agent of the grantor, under authorization of a vote of the stockholders of that corporation. By this transaction the Pulpwood Company did not divest itself of all of its assets, since it still owned a large amount of lumber at East Dorset, other lumber in Maine, New Hampshire, and New Brunswick and machinery and mill equipment at Millerton, New Brunswick.
The plaintiff's position is that the evidence tended to show that Eaton, in making the purchase of the lumber from the plaintiff, was acting in behalf of the Pulpwood Company, as his undisclosed principal, which ratified his act by receiving it; that the plaintiff transferred the title of the merchandise to that company which received the benefit of the contract, and became the debtor, although after arrival at East Dorset it transferred title to Eaton, and that since the East Dorset mill and machinery of the Pulpwood Company were deeded to the Aircraft Company, the latter corporation assumed and became liable for the debts of its grantor, by virtue of G.L. 4926, No. 125, § 1, Acts 1919, then in force.
The defendant contends that the undisputed evidence shows that the purchases were made by Eaton personally, and not as agent; that the contract was his, and he received the benefit of it; that the Pulpwood Company had no title or interest in the lumber, and never received it; and that, in any event, the statute above cited does not impose liability upon the Aircraft Company, since it only applies where the debtor corporation has transferred all of its assets and franchises to another company.
In passing upon a motion for a directed verdict, we must not only take the evidence in the most favorable light for the party against whom the motion is, made, but we must also give consideration to such inferences as might reasonably be drawn by the jury from the facts appearing in the evidence. Picknell v. Bean, 99 Vt. 39, 41, 130 A. 578; Partridge v. Cole, 96 Vt. 281, 285, 119 A. 398, 32 A.L.R. 854. Where the evidence affords room for opposing inferences on the part of reasonable men, it is error to direct a verdict. Anderson v. Dutton, 100 Vt. 464, 468, 139 A. 210; Comeau v. C. C. Manuel & Sons Co., 84 Vt. 501, 509, 80 A. 51. "It is a rule of general application that, though the facts are undisputed, when fair-minded and unprejudiced men may reasonably differ in the conclusion to be drawn therefrom, the question is one of fact for the jury." Spaulding v. Mut. Life Ins. Co., 94 Vt. 42, 57, 109 A. 22, 29. But where the evidence is so conclusive in character as to admit of no opposing inferences, the question is one of law and not of fact. Crichton v. Barrows Coal Co., 100 Vt. 460, 463, 139 A. 252; Spaulding v. Mut. Life Ins. Co., supra.
We may assume, although there is no direct evidence of the fact, that the bills of lading were delivered to the Pulpwood Company, and so, the bills being regarded in law as the symbols and representations of the cargoes (Crampton v. McBain, 71 Vt. 242, 245, 42 A. 611), the fact that this company was the consignee named therein was prima facie evidence that it had the title to the lumber. Davis and Aubin v. Bradley & Co., 28 Vt. 118, 125, 65 Am. Dec. 226; Everett v. Coffin et al., 6 Wend. (N.Y.) 603, 606, 22 Am. Dec. 551. It was the "presumptive owner." New York Cent. R. Co. v. Warren Ross Lumber Company, 234 N.Y. 261, 137 N. E. 324, 24 A.L.R. 1160, 1162. But this "presumption as to ownership * *...
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