Rosenbaum v. Weeden

• Decision Date: 12 June 1868
• Citation: 59 Va. 785
• Parties: ROSENBAUMS v. WEEDEN, JOHNSON & CO.
• Court: Virginia Supreme Court

59 Va. 785

ROSENBAUMS v. WEEDEN, JOHNSON & CO.

Supreme Court of Appeals of Virginia.

June 12, 1868

1. W, a merchant, sells goods to R, who returns them, and refuses to complete the contract. W informs R that he will hold him to the contract, and that he holds the goods for him. R, still refusing to take the goods and pay for them, M may sell them and sue R for the loss upon them.

2. In such a case W is not bound to give R notice of the time and place of sale; and though he gives such notice, he may postpone the sale to another day, if that seems judicious.

3. Though the price of such goods was declining, and W retains them for two months or more before he sells them, he is still entitled to recover.

4. If an instruction asked does not correctly expound the law, the court, as a general rule, may refuse to give it, and is not bound to modify it or give any other instruction in its place.

5. An instruction asked for may be so equivocal, that to give or refuse it might mislead the jury, and thus it might have all the effect of an erroneous instruction. In such a case it would be proper for the court to modify the instruction, so as to make it plain.

This was an action of assumpsit in the Circuit Court of the city of Richmond, brought in June, 1866, by Weeden, Johnson & Co. merchants in Baltimore, against G. M. & M. Rosenbaum of Richmond, to recover a balance due upon some dry goods which the plaintiffs alleged they had sold to the defendants, and that the defendants had improperly returned to them. The case is fully stated by Moncure P. in his opinion. There was a verdict and judgment for the plaintiffs for $1,360.89 with interest from the 18th of April, 1866, till paid; and upon a writ of error to the District Court of Appeals at Williamsburg this judgment was affirmed. The Rosenbaums then obtained a writ of error to this court.

Lyons for the appellants.

E. Y Cannon, for the appellees.

MONCURE P.

This is an action of assumpsit brought by the defendants in error, Weeden, Johnson & Co., merchants of Baltimore, against the plaintiffs in error, S. M. & M. Rosenbaum, merchants of Richmond, to recover damages alleged to have been sustained by the former in consequence of the refusal and failure of the latter to accept and receive certain goods bargained and sold, and, according to the contract of sale, tendered to them by the former. The declaration contains three special counts, and also a general count on an account stated. There was a demurrer to the declaration and each count of it, which was afterwards withdrawn, and the general issue was joined and tried, on which a verdict and judgment were rendered in favor of the plaintiffs in the court below for $1,360.89, with interest thereon from the 18th day of April, 1866, till paid. On the trial of the cause, the defendants in the court below moved the court to give three instructions to the jury; the first of which was accordingly given, but the second and third were refused; and a bill of exceptions was taken to the opinion of the court refusing them. The only questions we have to decide in this case are, Whether the court erred in refusing to give the second and third instructions aforesaid respectively?

The evidence introduced on the trial is set out in the bill of exceptions, and tended to prove, in substance, that on the 15th of January, 1866, Mr. Crabbe, one of the firm of the vendors, who resided and did business in Baltimore as jobbers and wholesale dealers in dry goods, being on a trip to the South, called at the store of the vendees in Richmond, and contracted to sell them ten bales of cotton goods called " Lanarks," an article well known to the trade, at a certain price, and to be of a certain width, if they could be procured in Baltimore. Mr. Crabbe immediately communicated the fact of the sale to his partners in Baltimore, who purchased the goods, and on the 17th of the same month shipped them to the vendees in Richmond, and sent them also a letter and an account, which are set out in the bill of exceptions. The goods arrived in Richmond on the 19th of the same month--January, 1866. On the next day, the 20th, the vendees wrote to the vendors in regard to the goods, which had been received by the former. The letter is not in the record, not having been offered in evidence on the trial; but it appears from the reply of the vendors to that letter, that the vendees objected to the goods on the ground that they were not the article they had contracted to purchase; that they had contracted to purchase cotton goods, called " Warrens," whereas the goods sent were " " Lanarks." The said reply of the vendors bears date on the 22d of the same month, and is in the record. In it the vendors say that Mr. Crabbe's order was to send " Lanarks," and that it would not do to substitute any other brand; that they could hardly think that Mr. C. intended to sell, or the vendees could have expected to buy, " Warrens" at the prices named; that Mr. C. was in North Carolina, and would be in Richmond in a few days, and they preferred waiting for him to see the vendees, as he was familiar with the terms of sale. On the 29th of the same month, the vendees again wrote to the vendors; but the letter is not in the record. Its purport, however, appears from the reply to it which is in the record, and bears date on the next day, to wit, the 30th of January, 1866. In that reply the vendors say: " Yours of the 29th to hand, in which you say that Mr. Crabbe has not called to settle the matter of the Lanarks sheetings, and that you wish us to write you by return mail, whether you should ship them to us or store them at our expense. We beg to say, in reply, that Mr. Crabbe must decide whether or not you ordered the Lanarks. If you did order that make of goods, we shall not take them back to account. If he sold you Warrens, or any other make than Lanarks, we will cheerfully take them back. Mr. C. writes us that he will be in Richmond this week, and we must ask of you to await his decision in the matter." A few days after the date of that reply, to wit, on the 3d of February, Mr. C. returned from North Carolina to Richmond, and had an interview with the vendees, the particulars of which are not stated, but the result was unsatisfactory; as it appears that shortly thereafter eight of the ten bales of the said goods were returned to the vendors; the other two (which, according to the evidence offered by the vendees, had been opened and found to be wet, and not of the description of goods contracted to be purchased by them,) having been retained and paid for by them, without prejudice to their defence in this suit. On the 10th of February, the vendors wrote to the vendees as follows: " The Powhatan Steamboat Company delivered to us to-day eight bales brown cotton, which we presume are from you. We received these goods under protest, and so notified the captain of the steamer that brought the goods. We hereby notify you that we received these goods under protest, and hold them subject to your order. We have paid the freight and charged to you. We hold your letter stating, as one of your excuses for returning these goods, that they were damaged. We do not see that those returned are damaged, and have once more to say to you, that Mr. Crabbe's affidavit that you bought these goods warrants us in stating that we shall hold you to your contract." The goods having, it seems, been contracted to be sold on a credit of thirty days, the vendors, on the 15th of February, 1866, drew on the vendees at sight for $2,706.88, the price of the eight bales returned, with expenses added, but the draft was protested for non-payment. In the latter part of the same month of February, one of the vendees met one of the vendors in New York, and promised to call at the store of the latter in Baltimore and settle the claim for the price of the cottons. On the 5th of April following, a written notice, signed by the vendors, was addressed to and served on the vendees, to the following effect: " We hereby give you notice, that whereas, there are eight bales of brown muslins now in our warehouse in this city (Baltimore) belonging to you, which you have been notified to remove upon payment of our claims against said goods, amounting to $2,749.75, as per our account rendered, and which you have failed to do; we shall, unless said claim is paid before the 16th day of this month, April, 1866, proceed to cause the said eight bales of muslins to be sold on that day, at public auction, at the auction house of Rex, Higgins & Co., in this city, on your account and at your risk and charges, and shall look to you for any deficiency arising from said sale." The goods were not sold on the day named in the notice, because it was not the regular sale day of the auction-house, and it was thought better by the vendors, for all parties, to postpone the sale to the regular sale day, which was the 18th, on which day the goods were sold at auction fairly, and brought the net sum of $1,240.06, which, in the opinion of the witness, was as much as they would have brought on the 16th. The market for such goods had been continually falling, from the day of the first sale in January, to the sale at auction on the 18th of April. No notice was given to the vendees of the change of the day of sale from the 16th to the 18th, though the sale was advertised as to each day in the Baltimore Sun, by Rex, Higgins & Co., the auctioneers; but the names of the parties concerned were not mentioned in the advertisements, which described the goods, and stated that they would be sold for cash, on account of whom it might concern.

The 2d and 3d instructions, which were asked for by the vendees and refused by the court, are as follows:

2d. If, from the evidence, the jury shall...