Post v. Burnham, 9.

• Decision Date: 10 November 1897
• Docket Number: 9.
• Citation: 83 F. 79
• Parties: POST et al. v. BURNHAM et al.
• Court: U.S. Court of Appeals — Third Circuit

83 F. 79

POST et al. v. BURNHAM et al.

No. 9.

United States Court of Appeals, Third Circuit.

November 10, 1897

This was an action by Henry A. V. Post and Charles C. Pomeroy, as surviving partners of the firm of Post, Martin & Co., against George Burnham and others, trading as Burnham, Williams &amp Co., for breach of an implied warranty of title arising upon an alleged sale of four locomotives by defendants to plaintiffs. In the circuit court the judge directed a verdict for defendants, and the plaintiffs have appealed.

The real question in issue between the parties was whether the plaintiffs in fact purchased the locomotives of the defendants; defendants claiming that the purchase was made by plaintiffs from the Toledo, Ann Arbor & North Michigan Railway Company, to which the defendants had previously sold the locomotives. There was no question that the original sale by defendants was made to the railway company, and that the locomotives were shipped to them in November, 1892, and put in use on its road. From that time, defendants were pressing the railroad company for payment. Thus, on February 28, 1893 they wrote to the railroad company's general manager as follows:

'Dear Sir: We hand you herewith statement of account, showing amount due on engines shipped to your company in November say $37,780, for which we shall be pleased to receive remittance, as we are not in funds. Trusting that we shall hear from you at an early date, we are,' etc.

To this letter the general manager replied: 'I have your letter of the 28th ult, with invoice. As soon as the engines are received, I will send this invoice to New York for payment.'

On March 16, 1893, Post, Martin & Co., of New York, whose survivors are plaintiffs herein, addressed the following letter to the defendants:

'Gentlemen: We have arranged with Vice President Ashley, of the T., A.A. & N.M. Ry. Co., to pay for locomotives 37, 38, 39, and 40, which have been delivered his road from your works. Please, therefore, send us an invoice in our name of said locomotives,-- such invoice to be in substitution for and cancellation of any previously rendered invoice of said company,-- and we will remit the same in due course. Mr. Ashley will address you on the subject, in conformity with this letter.'

On receipt of the foregoing letter the defendants addressed to Mr. Ashley, president of the railroad company, the following:

'Dear Sir: We are requested by Post, Martin & Co., of New York, to send them invoices for engines 37, 38, 39, and 40, recently delivered to your company, as they have arranged to make settlement. Kindly confirm this, and have invoices already rendered for these engines returned to us.'

To this Mr. Ashley replied by telegram as follows:

'Post, Martin & Co. notification correct, and duly authorized.'

Thereupon defendants wrote to Post, Martin & Co. as follows:

'Gentlemen: We duly received your favor of March 16th, advising us that you have arranged with Mr. Ashley, of the T., A.A. & N.M. Ry. Co., to pay for locomotives 37, 38, 39, and 40, recently delivered to them, and requesting invoices. We at once wrote for the return of the original invoices, but have not yet received them. In the meantime, however, we hand you invoices in your name, and will cancel the originals as soon as received from the Railroad Co.'

Accompanying this letter were invoices made out to Post, Martin & Co. On March 28, 1893, the defendants again wrote to Post, Martin & Co. as follows:

'Gentlemen: We have your favor of March 27, and think we can explain the difference in the price of the engines as per invoices furnished by us, and the price named to you by the Railroad Co. The brakes for engines 37, 38, 39, and 40 were furnished by the Railroad Co., and simply attached by us. Our price for Nos. 37 and 38 is therefore made up as follows: For each engine, $8,990.00, plus $105.00 for attaching brakes. For Nos. 39 and 40, each engine $9,690.00, plus $105.00 for attaching brakes. Probably, in the price named to you by Mr. Ashley, he has included the brakes

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