Wagner v. Hallack

• Decision Date: 01 April 1877
• Citation: 3 Colo. 176
• Parties: WAGNER et al. v. HALLACK et al.
• Court: Colorado Supreme Court

3 Colo. 176

WAGNER et al. v. HALLACK et al.

Supreme Court of Colorado

April, 1877

Error to Probate Court of Arapahoe County.

DURING the month of September, 1872, one Boughten, of Cheyenne Wyoming Territory, wrote on behalf of one Heenan to the Hallack Brothers, the defendants in error, at Denver Colorado Territory, requesting them to send to Laramie Wyoming, certain articles of their manufacture to be used in the erection of a building at Laramie, which Heenan was then under contract to build for the Wagner Brothers, the plaintiffs in error. The articles ordered were prepared and shipped, and as alleged by the Hallacks were received and used by the Wagners. The latter declining to pay for the goods, Hallack Brothers instituted suit against them before a justice of the peace in Denver. The Wagners were non-residents, living in St. Louis, Missouri, but being found in Denver, personal service was had. Upon the trial of the cause before the justice of the peace, the Hallack Brothers recovered judgment, whereupon an appeal was prosecuted to the probate court of Arapahoe county.

Upon the trial in the probate court Erastus F. Hallack, one of the defendants in error, testified: 'The date of Boughten's order was the latter part of September, 1872 we shipped the goods by freight and marked them C. O. D.; it is not customary for railroad companies to deliver goods so marked without being paid for them; I don't know that I ever knew it to happen except in this case; I think the bill attached to the deposition of Henry Wagner is the one I sent to Woodbury, but I don't know; my recollection is that I instructed Woodbury to collect this bill made out against Heenan, from the defendants; I sent this bill to Woodbury, made out against Heenan, to collect of the defendants for goods already sent by freight, C. O. D. C. O. D. means to collect on delivery, by the man or person authorized to collect; Woodbury was authorized to collect; although this bill was sent to Woodbury for the defendants, the bill was made against Heenan because the order came from him; it came through the hands of Boughten for Heenan; I think the goods were charged on our books in the way the bill was made out; the goods were never charged on our books to anybody but Heenan; at the time I received the order I knew for whom Heenan wanted the goods, from the letter received from Boughten, who said that they were for the store of Wagner, for Wagner Bros.; I don't know who received the goods at the place of delivery; these goods were not sent to the defendants; I do not think we wrote any letters to Heenan about paying for these goods; we never gave Heenan credit for the goods nor looked to him for our pay; Boughten was our agent at the time; Woodbury was made our agent in the collection of this bill; I do not know whether or not the defendants ever received those goods; I don't know that a bill for the railroad company accompanied these goods; we sometimes mark goods C. O. D. when we don't expect the railroad company to collect the bill; I marked these goods; I think there were five or sick packages, all marked to Woodbury.'

The witness, Woodbury, testified: 'I remember a conversation with the defendants sometime in the fall of 1872 in reference to a sale of the stuff for their building; I think it was about the 12th or 15th of October; Henry Wagner requested me to writ to the plaintiffs and ask them to ship them some sash, doors and brackets, which had been previously ordered for the building which Heenan was then erecting at Laramie City; to the best of my recollection he requested me to write to the plaintiffs and ask them to send doors, sash, brackets and mouldings which had been ordered for their building, and they would see those articles paid for; about that time there was something said that they were afraid the plaintiffs would not ship to them on Heeman's account; I think this was said by Henry Wagner, and I wrote to the plaintiffs on the same evening; I only wrote them one letter; I told them that Wagner Brothers requested them to ship these doors, sash, etc., as soon as they could, or immediately, and they would see them paid for; I heard from the plaintiffs in answer to that letter; the bill now shown me attached to the deposition I think I have seen before, either this or a copy of it; I received it from the plaintiffs in a letter I should think about the 24th or 25th of October, 1874; I saw the stuff which the defendants shipped me at Laramie City in the store room of the defendants; part of it was in packages and part of it had been taken apart; those in packages were marked 'B. Woodbury, Laramie City,' if I recollect right; it was noon when I saw them; I passed by on my way to dinner; Charles Wagner and Heenan were there at the time; I had a conversation with them in reference to the goods when I passed; I think Charles Wagner requested me to stop in; Heenan and Wagner were in the building at the time; two doors and one sash had been separated, and they were talking about the size of the sash; claimed that they were not made according to order; that these two particular sash were too small-too short and too narrow; I remarked that I thought they were made according to order, and it could be ascertained by sending for the plan and order; and I sent to the plaintiffs for them, and received them and measured the sash in question, and found them according to order; the same evening I had a conversation with the defendants about pay; I took the bill of the goods to the defendants to their store adjoining the building which was then being erected, and requested them to pay for them; in answer to my request to pay, the defendants said they did not know whether or not the goods were made according to order, and they were not willing to pay for them until they saw who was to blame, etc. I never understood from the defendants how the goods came to be taken from the depot.

I don't know who took them; I have no recollection of authorizing any one to take them. I next saw those goods in the building of the defendants, put in position in the front; they never paid me for that bill.'

There was evidence to prove the value of the goods in question in the Denver market.

On the request of the plaintiffs, the following instructions were given, which were objected to by the defendants:

'1. If the jury find from the evidence that the plaintiffs forwarded the goods to Laramie City to Benjamin Woodbury, as their agent, and if they further find that the defendants took the goods without authority from the plaintiffs or said Woodbury, and converted them to their own use, they are responsible to the plaintiffs for the value thereof.'

'2. The jury are instructed that if they find from the evidence that the plaintiffs furnished the material in question to the defendants, and upon the promise of the defendants that they would see them paid for, they will find for the plaintiffs.'

'3. When a person furnishes goods to another on a promise to pay for them, made previously to the furnishing of the same by and on the credit of a third person, such third person is liable, and the case is not within the statute of frauds.'

The court ex mero motu charged the jury as follows, to which the defendants also objected.

'The primary question for you to determine, after finding the sale and delivery of goods, is this: upon what promise and whose credit were the goods sold and delivered? If upon the promise and credit of these defendants, then you should find against them; but if upon the promise and credit of any one else, then you should find in favor of these defendants. In ascertaining this question, you may consider against whom the bill for them was made, whether or not the plaintiffs held the said Heenan primarily liable, so that the value of the material was an existing debt against him at the time the goods were shipped; whether or not the defendants were only secondarily liable by reason of a promise by them to pay an indebtedness already existing against said Heenan. Should you find from the evidence that the plaintiffs received an order from said Heenan for the goods in question, but declined to ship them to him, or part with the possession of them until they received a promise from the defendants that they would pay for them, if they did so promise, and that in response to and relying upon such promise the plaintiffs shipped said goods to Mr. Woodbury, after which the defendants received them, or the benefit of them, you should find for the plaintiffs.'

The jury found a verdict in favor of the plaintiffs, and judgment having been rendered on the verdict, the cause was brought into this court upon writ of error.

Mr. CHARLES S. THOMAS, for plaintiff in error.

Mr. E. P. JACOBSON, for defendant in error.

ELBERT J.

The first question that presents itself in this case is one of jurisdiction.

The plaintiffs in error, who were defendants below, claim that at the time the suit was commenced they were non-residents, and that...