Robbins v. Brazil Syndicate R. & B. Company
| Decision Date | 03 January 1917 |
| Docket Number | 9,174 |
| Citation | 114 N.E. 707,63 Ind.App. 455 |
| Parties | ROBBINS ET AL. v. BRAZIL SYNDICATE R. AND B. COMPANY |
| Court | Indiana Appellate Court |
From Decatur Circuit Court; Hugh Wickens, Judge.
Action by the Brazil R. and B. Company against Will H. Robbins and Charles H. Johnston, doing business under the firm name of W H. Robbins & Company. From a judgment for plaintiff, the defendants appeal.
Reversed.
George L. Tremain and Rollin A. Turner, for appellants.
Thomas E. Davidson, for appellee.
This action was brought by appellee against appellants, Will H Robbins and Charles H. Johnston, doing business under the firm name of W. H. Robbins & Co., to recover the purchase price of 1,250 pounds of coffee alleged to have been sold to appellants by appellee. The demurrer to the amended second paragraph of complaint for insufficiency of facts was overruled. Appellants filed an amended second paragraph and an additional third paragraph of answer to the amended second paragraph of complaint. Appellee demurred to each of such paragraphs of answer for insufficiency of facts alleged to constitute a defense to its cause of action and each of such demurrers was sustained. Thereupon appellee withdrew its first paragraph of complaint and appellants withdrew their first paragraph of answer. Appellants failed and refused to plead further and elected to stand on their said answers and the rulings of the court on the demurrers thereto, and the court rendered judgment for appellee against appellants in the sum of $ 207.50.
From this judgment appellants appealed and have assigned as error the overruling of their demurrer to the amended second paragraph of complaint, the sustaining of appellee's separate demurrer to the second amended and the additional third paragraph of appellants' answer.
Omitting formal and unquestioned allegations, the complaint is, in substance, as follows: Appellee was a wholesale dealer in coffee in the city of New York and among the brands of coffee sold by it to dealers was that known as "Santos 4'S," which was sold in bags of fifty pounds each, commonly designated to dealers as "50'S"; that appellants, Will H. Robbins and Charles H. Johnston, under the firm name of W. H. Robbins & Co., were engaged in the wholesale grocery business in Greensburg, Indiana; that in 1913 appellee entered into a written contract with appellants through the following letter and telegrams, for the sale and purchase of twenty-five bags of fifty pounds each of said "Santos 4'S," at the agreed price of sixteen and one-half cents per pound, which letter and telegrams are as follows:
Letter:
Clover and Timothy Seed.
Greensburg, Indiana, 3-8, 1913.
"Brazil Syndicate, New York,
Gentlemen:
Quote us 25-50's Santos 4's same as last.
Yours truly,
W. H. Robbins & Co.
Telegram:
New York, Mar. 10, 1913.
Santos fours sixteen and half subject to return confirmation.
Brazil Syndicate R. & B. Co., Inc."
Telegram:
On March 19, 1913, in response to said letter and telegrams, appellee shipped to appellants by the usual and ordinary routes of carriage, twenty-five bags of fifty pounds each of the coffee designated and so ordered by appellants; that the same was addressed and consigned to W. H. Robbins & Co., Greensburg, Indiana, and delivered to the Erie Railroad Company for transportation to appellants, and said railroad company accepted said coffee and undertook the delivery thereof; that appellee caused the same to be billed to appellants and mailed to them an invoice and bill of lading for the coffee so shipped as aforesaid, which invoice and bill of lading were received by appellants; that said railroad company was at said time a common carrier of goods and merchandise from the city of New York to Greensburg, Indiana, and other points; that it was understood by appellants that appellee was selling and appellants were buying twenty-five bags of fifty pounds each of coffee known as "Santos 4'S" at the agreed price of sixteen and a half cents per pound.
The memorandum accompanying the demurrer to the complaint is, in substance, as follows: The complaint does not aver that the goods sold were delivered to the purchasers; the averments do not show an unconditional purchase of the goods f. o. b. New York City; the averments do not show that the coffee shipped was the "same as last," nor do they explain the meaning of such phrase; the complaint shows that the goods were never delivered to the purchaser but were delivered to the Erie Railroad Company; the averments do not show an unconditional sale of the coffee without the right of inspection at Greensburg, Indiana, and confirmation or rejection and compliance with conditions of payment; the averments do not show that appellants received notice of the shipment or that the seller performed all the conditions of the sale to be performed by it. The theory of the complaint is that the letter and telegrams constitute a contract of sale; that appellants accepted the proposition and terms of appellee for the sale of twenty-five bags of the brand of coffee designated, at the price quoted, and that appellee thereupon duly consigned the shipment to appellants, sent them a bill of lading therefor, and delivered the coffee to the Erie Railroad Company, a common carrier of such goods from New York to Greensburg, Indiana, for transportation and delivery to appellants, and thereby they became the owners of the coffee at the time of its delivery to the railroad company as aforesaid.
Where goods are bought at one place to be consigned and transported to the purchaser at another place, in the absence of any arrangement or agreement to the contrary, the general rule is that delivery by the seller to a common carrier of such goods, duly consigned to the purchaser, is a delivery to the purchaser, for the carrier thereby becomes the agent of the purchaser and title to the property passes to him at the time of such delivery. There are exceptions to this general rule, but, in the absence of facts showing a different agreement or arrangement, the presumption is that the general rule prevails. Pennsylvania Co. v. Holderman (1879), 69 Ind. 18, 26; Pennsylvania Co. v. Poor (1885), 103 Ind. 553, 554, 3 N.E. 253; Sohn v. Jervis (1885), 101 Ind. 578, 582, 1 N.E. 73; Butler v. Pittsburgh, etc., R. Co. (1897), 18 Ind.App. 656, 660, 46 N.E. 92; Tebbs v. Cleveland, etc., R. Co. (1897), 20 Ind.App. 192, 199, 50 N.E. 486; Kilmer v. Moneyweight Scale Co. (1905), 36 Ind.App. 568, 571, 76 N.E. 271; Hill v. Fruita Mercantile Co. (1908), 42 Colo. 491, 497, 94 P. 354, 126 Am. St. 172; Kelsea v. Ramsey & Gore Mfg. Co. (1893), 55 N.J.L. 320, 26 A. 907, 22 L.R.A. 415, and notes; 4 Elliott, Railroads (2d ed.) § 1414; 5 Elliott, Contracts § 5042.
The general rule above stated may be changed by agreement of the seller and purchaser, either express, or implied from facts and circumstances or an established course of dealing, but the rule is not changed by a mere right of inspection to ascertain whether the goods delivered are, in fact, such as were purchased. The right of inspection, in the absence of any established custom or agreement to the contrary, does not prevent the title from passing to the purchaser on delivery to the carrier of the goods duly consigned to the purchaser, but, if on inspection the goods are not found to be such as were purchased, that fact may authorize a rescission of the contract of sale. Wind v. Iler & Co. (1895), 93 Iowa 316, 61 N.W. 1001, 27 L.R.A. 219, 220; Foley v. Felrath (1892), 98 Ala. 176, 13 So. 485, 39 Am. St. 39; Boothby v. Plaisted (1871), 51 N.H. 436, 437, 12 Am. Rep. 140; 4 Elliott, Railroads (2d ed.) § 1414; 35 Cyc 195.
If goods are sold to be delivered by the seller at the residence or place of business of the purchaser, a delivery to the carrier is not a delivery to the purchaser, for in such case the carrier is the agent of the seller and not of the purchaser. In such instance failure to deliver the goods to the purchaser according to the terms of the sale will defeat recovery of the purchase price of the goods. 2 Benjamin, Sales (1889) § 1040; 35 Cyc 195, and cases cited; Braddock Glass Co. v. Irwin (1893), 153 Pa. 440, 25 A. 490; McNeal v. Braun (1891), 53 N.J.L. 617, 23 A. 687, 26 Am. St. 441; Devine v. Edwards (1881), 101 Ill. 138, 141; Murray v. Nichols Mfg. Co. (1890), 11 N.Y.S. 734; Bartlett v. Jewett (1884), 98 Ind. 206; Sohn v. Jervis, supra.
The amended second paragraph of answer admits the execution of the letter and telegrams set out in...
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