Taylor v. Mueller

• Decision Date: 29 March 1883
• Parties: TAYLOR v MUELLER AND ANOTHER.
• Court: Minnesota Supreme Court

30 Minn. 343

15 N.W. 413

TAYLORvMUELLER AND ANOTHER.

Supreme Court of Minnesota.

Filed March 29, 1883.

Appeal from order of district court, county of Hennepin, denying plaintiff's motion for a new trial.

J. C. Haynes, for appellant.

Wilson & Lawrence, for respondent.

VANDERBURGH, J.

In May, 1881, the parties entered into a verbal agreement of sale by sample of two car-loads of barley, which plaintiffs undertook to sell and deliver to defendants. The grain had been previously consigned to plaintiff, and was in cars at the time, and was deposited by him in an elevator in his own name and on his own account. The parties all resided in the city of Minneapolis, and the defendants, who were brewers, were in the habit of purchasing and receiving large quantities of barley from the plaintiff on the railway track upon Second street, in the city, near their brewery, whence they took it in wagons. This track was connected with the elevator for transfer and delivery of grain. The barley remained in the elevator till the latter part of July, when the defendants requested that it be sent down to Second street, where they claimed it was to be delivered.

Thereafter a delivery order was furnished to the manager of the elevator through defendants, and the cars were accordingly sent down to Second street, where defendants examined the grain and found it inferior to the sample, and unfit for their use, and they thereupon promptly rejected it and notified plaintiff of the fact. It does not appear that the defendants had anything to do with the selection or employment of the carrier or cars in which the delivery was made, or had any control over or responsibility therefor.

The issue tried and submitted to the jury to pass upon was whether the grain was by the contract to be delivered at the elevator or on Second street. The plaintiff's evidence tended to show that it was agreed that the grain should be delivered at the elevator at the time he stored it there, and he insists that the sale was then completed and his part of the contract performed. While the evidence on defendants' behalf tended to prove that the barley was to be delivered to them on Second street, where, if accepted, it might be taken conveniently to the brewery. They had not seen the grain, nor does it appear that they had any notice of its inferior condition till they examined it at the latter place. The issue as to the place agreed on for the delivery was sharply defined by the court in its charge to the jury, and they must have found thereon in favor of the defendants.

From the facts attending the transfer of the barley from the elevator to Second street, the plaintiff contends that there was evidence of an acceptance and receipt of the grain at the elevator, and that the court erred in refusing the instruction to that effect asked by him.

Whether there was sufficient evidence of such acceptance as to warrant or support a verdict in plaintiff's favor, is the principal question for our consideration. Defendants had a short time previously ordered and received at Second street two other car-loads of barley, bought in the same way. The evidence relied on as tending to prove such acceptance appears in the testimony of the manager of the elevator, a witness in plaintiff's behalf, and is as follows: “The circumstances under which I shipped the last two cars are as follows: The defendants ordered it by telephone, same as before, and gave numbers of the cars. I told them I had no orders to deliver the grain to them; that I had already delivered them two cars, and that I must insist upon having a written order before delivering any more; and they got me one; that is the order upon which I sent out the last two cars, and which gave me authority to send them all out; 2,460 was one of the cars for which I had no order. So I got this order for all of them. *** They were ordered to Second street. There is where they get at them with teams.” The order was a direction to the manager to deliver to defendants the two cars previously ordered and sent, and the two cars then delivered and referred to by the witness. Except as above, and save as to previous requests by defendants of plaintiff to send the barley down to Second street, where they insisted upon having it delivered, there is no evidence of an acceptance by defendants. The evidence shows that the barley was examined by defendants the next morning after it was ordered from the elevator.

Delivery according to the terms of a written contract passes the title, but delivery under a contract invalid by the statute of frauds is at the vendor's risk. No act of the vendor alone is sufficient. Stone v. Browning, 68 N. Y. 601. While the grain remained in the elevator, in the name of the plaintiff, there had been neither delivery nor acceptance. The mere issuance of the delivery order did not constitute an actual delivery of the grain. It was merely a written authority to receive the possession. Tanner v. Scoville, 14 Mees. & W. 28; Benj. Sales, §§ 776, 806, 815. The manager requested the order to cover past deliveries and this also, and it was accordingly issued. It would hardly be claimed that the defendants were precluded from rejecting the former two car-loads at Second street, if found inferior to sample. Nor would it be reasonable, under the circumstances, to construe their omission to examine this grain at the elevator into a waiver or conclusive acceptance. Defendants might have gone and inspected the grain before it was put in the elevator. Doubtless they might have examined it in the elevator also; but, manifestly, if, as the jury have found, it was to be delivered at Second street, this was not contemplated by the parties in making the contract for the delivery of grain at that place to correspond with the sample. Dealing with the property as owner, as by a sale, pledge, or otherwise, or detention of the property, or its control beyond a reasonable time, for inspection and rejection, is evidence of an acceptance. This is not, we think, shown to be the case here, upon a fair construction of the evidence.

A constructive receipt, by the carrier at the elevator, upon plaintiff's order, though upon defendants' request to send it to Second street, followed, as it was, by a seasonable inspection and rejection, because not equal to the sample, falls short of an acceptance. Caulkins v. Wellman, 47 N. Y. 452, 455;Knight v. Mann, 120 Mass. 220. To constitute an acceptance, within the meaning of the statute, there must have been some act on the part of the defendants showing their intention to accept and appropriate the grain unconditionally as owners. Simpson v. Krumdick, 28 Minn. 355; [S. C.10 N. W. REP. 18;] Stone v. Browning, supra; 5 Wait, Ac. & Def. 579.

Now, in this case, whether it be claimed that the manager of the elevator delivered the grain to the defendants, through the carrier, at Second street,-and he says “the order was his authority for sending the cars out,”-or that he delivered it to the carrier for the defendants, in either case the defendants...