Stillwell v. Bowling

• Decision Date: 31 October 1865
• Citation: 36 Mo. 310
• Parties: BRISEN STILLWELL, Plaintiff in Error, v. THOMAS BOWLING, Defendant in Error.
• Court: Missouri Supreme Court

36 Mo. 310

BRISEN STILLWELL, Plaintiff in Error,

v.THOMAS BOWLING, Defendant in Error.

Supreme Court of Missouri.

October Term, 1865.

Error to Hannibal Court of Common Pleas.

W. P. Harrison and E. B. Ewing, for plaintiff in error.

There is no specific place in Hannibal named for the delivery of said hogs, in said contract; but there is a specific time, viz, on or before the first day of January, 1856. In the absence of a particular place being specified for the delivery of said hogs, the law fixes a place. The first act has to be performed by the seller. He must then take the articles sold to the purchaser's residence, or place of business, and offer to deliver them there if they are portable; and if not, then he should seek the purchaser and ascertain from him where he wants the articles sold, delivered. By doing that he puts the purchaser in default, but not until then. (Bar v. Myers, 3 Watts & Sarg. 295; Currier v. Currier, 2 N. H. 75; Goodwin v. Holbrook, 4 Wend. 380; Lobdell v. Hopkins, 5 Cow. 516; Roberts v. Beatty, 2 Penn. 71; Brownson v. Gleason, 7 Barb. 472 Coke upon Litt. 210; 2 Pars. on Cont. 160-2, first ed.)

Carr, for defendant in error.LOVELACE, Judge, delivered the opinion of the court.

This action is founded upon a written contract, of which the following is a copy:

“Hannibal, July 16, 1855. I have this day bought of B. Stillwell, five hundred good corn fat hogs, weighing two hundred pounds and over, at five dollars per hundred pounds net, to be delivered on or before the first day of January, 1856, in Hannibal, to be delivered in lots as they usually come in. (Signed,) Thomas Bowling.”

Between the day of execution of the contract and the day on or before which the hogs were to be delivered, the plaintiff notified the defendant that he had one hundred hogs at the packing house of Shields, Stillwell & Co., in Hannibal, which he proposed to deliver on his contract; and that the defendant refused to receive them at that place, but gave immediate notice to the plaintiff that he was now receiving his hogs at the pork-house of Samuels & Moss, which was also in the city of Hannibal.

Upon this evidence the court instructed the jury to the effect, that the defendant might select any reasonably convenient place in the city o Hannibal for the delivery of the hogs under the contract, and that it was the duty of the plaintiff to deliver them at the place thus appointed by the defendant.

The plaintiff then took a non-suit with leave, and afterwards moved to set the same aside; which being overruled by the court, the case is brought here by writ of error.

The only question involved is as to the place of delivery. Which part had the right, under the contract, to appoint the place of delivery in th city of Hannibal? The rule seems to be for the delivery of portable aticles, if neither time nor place is fixed by the contract, but they are to be delivered on demand, then they are to be delivered at the place where they are at the time of the sale, such as the store of the merchant, the shop of the manufacturer or mechanic, and the farm or...