Wind v. Iler

• Decision Date: 21 January 1895
• Citation: 61 N.W. 1001,93 Iowa 316
• Parties: WIND ET AL. v. ILER ET AL.
• Court: Iowa Supreme Court

93 Iowa 316

61 N.W. 1001

WIND ET AL.

v.ILER ET AL.

Supreme Court of Iowa.

Jan. 21, 1895.

Appeal from district court, Mills county; N. W. Macy, Judge.

Action at law to recover money paid by plaintiff to defendants for intoxicating liquors during the years 1881, 1882, 1883, and 1884. There was a trial to a jury, and at the conclusion of plaintiff's evidence, defendants moved the court for a verdict. The motion was sustained, and verdict and judgment rendered for defendants, and plaintiff appeals. Affirmed.E. R. Duffie, John P. Breen, and John Y. Stone, for appellant.

Congdon & Hunt, James M. Woolworth, and Smith McPherson, for appellees.

DEEMER, J.

Plaintiff is a copartnership composed of N. P. Wind and George F. Silvers, heretofore, and during the years 1881, 1882, 1883, and 1884, doing business as wholesale and retail liquor dealers in the city of Ottumwa, Iowa. Defendant Iler & Co. is a copartnership composed of the other defendants, doing a wholesale liquor business in the city of Omaha, Neb. Sometime during the latter part of the year 1881 defendants' traveling man, one Gilmore, called upon the plaintiffs at their place of business in Ottumwa to induce them to order some liquors from the firm which he represented. The evidence shows without conflict that this agent had no authority to make sales. He had power to take orders, which were submitted to the defendants for their rejection or approval, and, if approved, the goods ordered were shipped to the proposed purchaser. Plaintiffs gave this agent an order for some goods, which was submitted to the defendants, and by them approved, and the liquors were delivered to the railroad company for shipment to plaintiffs at Ottumwa, plaintiffs paying the freight thereon. An arrangement was made between the plaintiffs and defendants' agent by which plaintiffs might thereafter order such liquors as they desired by mail or by telegram, and in accordance with this arrangement they ordered large quantities of liquor, which they paid for through the Ottumwa banks in response to drafts made upon them for the purchase price. All liquors so paid for, except three bills, were ordered by wire or mail. It is claimed by the plaintiffs that all these various sales of liquor, amounting in number to about 80, and in value to more than $2,000, were unlawful and that they are entitled to recover all payments made thereon, under Code, § 1550, which provides that all payments made for intoxicating liquor sold in violation of our liquor law shall be held to have been received in violation of law, and against equity and good conscience, and to have been received upon a valid promise of the receiver to pay to the person furnishing such consideration the sum thereof.

The first question which arises is, were the sales made in this state? From what we have already stated it would appear that the sales were each and all made in Nebraska. But plaintiffs contend that, while the defendants' agent may have had no authority to do more than take their orders for the goods, yet there is testimony tending to show that the liquors were all shipped subject to their approval, and that the title to the goods did not pass until the liquors were received and tested by them. The testimony on this point is as follows: Witness George W. Silvers said, in substance, that Gilmore, the agent, said: “If the goods isn't satisfactory after you receive them, you can send them back to Omaha.” And Silvers told him (Gilmore) if the goods were not as he said they should come back. “The goods came, and we inspected them,--gauged them. We had a government gauge there,--a thermometer we called a ‘tester.’ We tested the goods before we paid the freight. Gilmore said, ‘If you receive the order all in good shape, and the goods are satisfactory, and you need any more, and I am not around, why, send your orders in to the house, and they will be filled.’ ” This witness further testified that when the goods came to the depot at Omaha they were taken by a drayman from the freight house, and delivered at plaintiffs' place of business, the drayman paying the freight in the first instance, and afterwards collecting it from the plaintiffs. Witness further testified that one bill of goods which plaintiffs ordered shipped to Des Moines, to a customer of theirs at that place, was returned, and credit asked of defendants therefor, and that defendants gave them a small discount on one of their bills. He further said: “If they were not satisfactory, they were to be returned. That was the contract. We never returned any from Ottumwa.” Witness Wind testified that Gilmore said: “If his goods were not as represented we had the privilege of returning them. We told him we wanted to examine the goods after they came, and see if they suited us. He said we had that privilege.” “We had a gauge or whisky tester that we used. We took out the bung, and took a little out, and used the tester. We told Mr. Gilmore our method of examining it. He said it was satisfactory.” Witness Silvers also testified that within three or four days after giving the order the plaintiffs received a bill for the goods, and entries were then made on the plaintiffs' ledger of the amount of the bill. It is an elementary proposition of law, needing no citation of authority in its support, that title passes in the sale of personal property when from all circumstances surrounding the transaction it is evident that the parties to the sale intended it to pass. It is wholly a question of intention to be arrived at from the contract and the acts and conduct of the parties thereto. In the absence of all stipulations and conditions in the contract, the title will be presumed to pass, when the parties live at different places, when the goods are delivered by the seller to a transportation company for carriage to the buyer, subject to the seller's lien or right of stoppage in transitu. This is certainly the rule where the buyer is to pay the freight. It is also a general rule that the buyer has a right to inspect unascertained goods to determine whether they are such as are bargained for or not. Newm. Sales, § 252; Benj. Sales (Bennett's Ed.) pp. 669-690; Hirshhorn v. Stewart, 49 Iowa, 418. This right of inspection, however, does not of itself postpone the passing of the title. It simply authorizes a rescission of the sale in the event the goods are not as contracted for. So that the reservation of the right to inspect the goods by the plaintiffs in this case does not of itself indicate that title was not to pass until the goods were tested, for it gives to plaintiffs no greater rights than they would have had under the law without such reservation.

It is claimed that by the terms of the contract the title was not to pass until the plaintiffs were satisfied, after testing the liquors, that they were the kind ordered. The law has made a somewhat refined, yet no less obvious, distinction between an option to purchase if satisfactory and an option to return if not satisfactory. In the one case title will not pass until the option is determined, and in the other case the property passes at once, subject to the right to rescind and return. The former may be said to be a conditional sale, and the latter has been denominated a “sale or return.” Hunt v. Wyman, 100 Mass. 198;Foley v. Felrath (Ala.) 13 South. 485; Newm. Sales, § 310; Buswell v. Bicknell, 17 Me. 344; Benj. Sales (Bennett's Ed.) p. 569, and cases cited. It is also well settled that the rule that title does not pass so long as anything remains to be done to the goods to ascertain their value, quality, or quantity, is only applicable to cases of constructive delivery. Bogy v. Rhodes, 4 G. Greene, 133. Under this rule the right reserved to plaintiffs to inspect and test the goods after they came into their actual possession would not operate to postpone the transfer of title, but merely gave them the right to rescind the contract and return the goods. See, also, in this connection, Foley v. Felrath, supra, and cases therein cited; 2 Kent, Comm. 496. We are satisfied from the fact that the drayman, who must be considered as plaintiffs' agent, paid the freight on these liquors, took them from the carrier, and delivered them to plaintiffs, and from the further fact that the plaintiffs credited defendants with the liquors as soon as they received the bills for them, which was in advance of the delivery of the goods, with the understanding that they were to have credit for such as might be returned, that both parties intended title to pass when the goods were delivered to the railroad company at Omaha, Neb., for transportation to Ottumwa; and that the sale was not one on trial or on approval, or if satisfactory to plaintiffs, but rather a completed sale, with an option in plaintiffs to return them if they did not meet the test plaintiffs proposed to give them. Our conclusions find support in the following cases: ...