Smith v. Gillett

• Decision Date: 31 January 1869
• Citation: 1869 WL 5223,50 Ill. 290
• Parties: HALLAM R. SMITHv.JOHN D. GILLETT.
• Court: Illinois Supreme Court

50 Ill. 290

1869 WL 5223 (Ill.)

HALLAM R. SMITH

v.JOHN D. GILLETT.

Supreme Court of Illinois.

January Term, 1869.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Sangamon county; the Hon. EDWARD Y. RICE, Judge, presiding.

This was an action of assumpsit, brought in the court below, by Smith, against Gillett, for failing to deliver a lot of cattle which the plaintiff claimed to have purchased from the defendant, at a certain price per hundred pounds.

The declaration contained six counts, but it is only necessary to consider the fourth, which alleged, substantially, that on the _____ day of January, A. D. 1867, plaintiff, at the instance and request of defendant, bargained with defendant to buy of defendant, and defendant then and there sold to the plaintiff eighty head of cattle, plaintiff's choice of a lot of cattle fed by James Brocker, at the rate or price of six dollars and fifty cents per hundred weight, to be delivered by the defendant to the plaintiff at the place where said cattle were fed, and to be taken by said plaintiff, at said place, and paid for when weighed at some convenient cattle scales, and to be delivered between the 10th and 15th days of May, 1867; alleging readiness to accept, receive and pay for the cattle, but that defendant would not deliver them, having, before the day of delivery, put it out of his power to do so.

The general issue was pleaded, and on the trial the plaintiff's testimony was as follows:

Hallam R. Smith testified: “I am the plaintiff in this suit, and the defendant, John D. Gillett, lives in Logan county. In January or February, 1867, I started by the cars to New York, and when we reached Elkhart, in Logan county, Ill., Gillett came upon the cars and proposed to sell me a lot of cattle which he said he would keep as long as I wished him to; he said he had a drove of cattle feeding at Brocker's, and he proposed to sell me eighty head-- my choice of the Brocker cattle--at six dollars and fifty cents a hundred, to be delivered between the 10th and 15th days of May then next, and I agreed to take them of him on these terms; I asked him if he wanted any money; he said, no, he did not want any money until the delivery of the cattle; I do not know where the cattle were being fed, but supposed them to be at Brocker's; I bought eighty head of the Brocker cattle--my choice of the lot; I went on the 10th of May, 1867, to Mr. Gillett's house, in Logan county, to get the cattle, and was ready to receive and pay for them, and so informed Mr. Gillett; he said I could not get them. The general rule when contracts are made for the sale of cattle, and no place is agreed for the delivery, is that they are to be delivered at the nearest cattle scales. I think these cattle, from Mr. Gillett's description, would weigh an average from thirteen to fourteen hundred; from the 10th to the 15th of May, 1867, such cattle as these were worth from seven and three-fourths to eight cents a pound. I bought six thousand head about the time I bought these, at $6.50 per hundred.” On cross-examination, he said: “I reached Mr. Gillett's on the 10th of May, about 2 o'clock in the afternoon. I don't know where Brocker lives; I did not go to Brocker's. I made the contract in January or February, can't tell which; was to have eighty head of the Brocker cattle; nothing was said at the time the contract was made as to the place of delivery; I had, before that time, bought a lot of cattle of Mr. Gillett, and looked at them before I bought them; Mr. Gillett had then two lots of cattle; I looked at both and bought one lot; I had never seen the Brocker cattle; I never told Robert or Charlton Buckles that I had bought Gillett's contract with Brocker, and never told Charlton Buckles that by the contract with Gillett I had named the 10th of May to receive the cattle; when I went to Mr. Gillett's on the 10th of May, I understood the cattle were gone; I went there especially to receive and pay for them; I was not, by the contract, to go and look at the cattle; I had been told by some one that if I wanted the cattle I had better go and look at them; I buy thousands of cattle without ever seeing them. It is usual in making contracts for cattle to specify where they are to be delivered; I hardly make two contracts alike, but if nothing is said in the contract, the seller is to deliver at the nearest scales; it was eighty head Gillett sold me; I was to have eighty head--my choice of the lot fed by James Brocker.”

Robert Rowen was introduced by plaintiff, and testified as follows: “On the 14th of February, 1867, I was upon the cars from Springfield to Atlanta, and went into the ladies' car; started forward to the baggage car, and in passing, found Mr. Smith, the plaintiff, sitting by himself, and he requested me to sit by him. When we reached Elkhart, Mr. Gillet came on the car, and got to talking about selling Mr. Smith a drove of cattle, and asked Smith when he wanted them delivered to him; Smith said, ‘let us agree upon the price first, and the time of delivery afterwards.’ They then agreed that Gillett would sell Smith eighty head of the Brocker cattle at $6.50 a hundred, to be delivered between the 10th and 15th of May; no place of delivery was specified. Gillett started off, and Smith called to him: ‘It is a bargain, is it?’ Gillett nodded his head affirmatively and said something; I don't know, but I supposed him to assent; I understood the cattle to be feeding at Brocker's. I am a railroad agent at Atlanta.”

James Brocker was next called and sworn, and testified for plaintiff: “My name is James Brocker; I live in Logan county; I had a lot of western cattle of about a hundred, and I sold to Mr. Gillett his choice, eighty head of the lot; Mr. Gillett took them away from my place on the 7th of May; I delivered them at Broadwell, on the Chicago & Alton Railroad; they were weighed, and averaged thirteen hundred and thirty-six pounds.”

The plaintiff here rested his case. And thereupon the defendant moved the court to exclude all the evidence so offered by the plaintiff from the jury, upon the ground that the said evidence did not tend to support either count of the plaintiff's declaration; which motion of the defendant was sustained by the court, and all of said evidence excluded from the jury, to which decision of the court, excluding said evidence, the plaintiff at the time excepted.

And the jury then found the issues for the defendant, and the court rendered judgment for the defendant and against the plaintiff for costs, to which the plaintiff at the time excepted.

The plaintiff appealed, and now assigns as error:

1st. That the court erred in excluding the plaintiff's evidence from the jury.

2d. The court erred in rendering judgment for the defendant and against the plaintiff for costs.

Messrs. PALMER & HAY, for the appellant. Messrs. STUART, EDWARDS & BROWN, for the appellee.

Mr. CHIEF JUSTICE BREESE delivered the opinion of the Court:

This was an action of assumpsit, in the Sangamon Circuit Court, brought by Hallam R. Smith, against John D. Gillett, for failing to deliver a lot of cattle which plaintiff claimed to have purchased of the defendant at a certain price per hundred pounds.

There was no place of delivery agreed upon.

The court, on motion of the defendant, excluded the plaintiff's evidence from the jury, and a verdict was found for the defendant. The plaintiff excepted at the time to this ruling of the court, excluding his evidence, and the propriety of this, is the material question before this court.

Appellant insists, that the evidence offered, sustained the allegations in the first, second and fourth counts. These counts are substantially alike, except as to the averment of the place of delivery,--the first alleging it was to be at the nearest cattle scales; the second, “at such convenient cattle scales as the defendant should thereafter prefer and determine,” and the fourth, “at the place where the said cattle were fed, and to be taken by the plaintiff at said place, and paid for when weighed at some convenient cattle scales.”

The proof offered sustained neither of these counts, except it shall be considered, it supports the fourth.

What, then, is the substance and real meaning of the allegation in this fourth count as to the delivery? It is averred, the cattle were to be delivered at the place where they were fed, and to be there taken by plaintiff. This is the whole of the count on the point of delivery. The rest of the allegation has nothing to do with the delivery, but refers alone to the payment of the cattle, and their weight to be ascertained at some convenient cattle scales. This allegation, having no connection with that of the delivery, may be rejected as surplusage, for, whether proved or not, it could not affect the question of the place of delivery. If nothing was said about the time of payment, the law would imply payment on delivery, and this would include the weighing, for they could not be paid for until the weight was known.

As we read this count, then, it alleges the cattle were to be delivered where fed, and there they were to be received by the plaintiff. What their weight might be, and when to be paid for, has nothing to do with the question of delivery.

Was it not, then, a fair question for the jury, from the evidence given, in view of the nature of the transaction and the surrounding circumstances, to consider the reasonableness of the proposition contained in the averment in this count--to say, if that was not the real intention of the parties as to the place of delivery? Bosworth v. Frankberger, 15 Ill. 508; 2 Greenl. Ev. secs. 609-10. What could be a more natural and reasonable inference, if A, owning a large lot of cattle then being fed in a certain lot of his, or of another person, agreeing to sell them to B, at a certain price per hundred weight, and to deliver them on one of two days named, and nothing is said about the place of delivery, than that the place where...