Schmertz v. Dwyer

1. A merchant in Bahia ordered goods from merchants in Pittsburgh, with instructions to send them “ by first opportunity by vessel, either to this direct or via Pernambuco or then to Rio Janeiro.” The goods were shipped by the vendors from Pittsburgh to New York, with instructions to ship them to Bahia. Held, that the property passed to the vendee on their shipment from Pittsburgh. 2. The vendors gave no instructions as to. shipment via Pernambuco, &c., and the consignees finding no vessel to Bahia, after some months the vendors ordered the sale of the goods and received the proceeds. Held, that the sale was illegal. 3. The court charged that the measure of damages was the price of the goods at Bahia when they should have arrived there, less the invoice price, expenses, costs and charges of transportation. Held, that this instruction was correct.

In the Court of Common Pleas of Allegheny county, to which the writ of error was issued, this case was an action of assumpsit, brought February 4th 1864, by James Dwyer against R. C. Schmertz and James Blakely, trading as Schmertz & Blakely. On the 15th of July 1862, Dwyer, the plaintiff, residing in Bahia, Brazil, wrote to Fulton & Co. a letter, of which the following extracts are the material parts:— “ Gentlemen: — Having been recommended to me by our mutual friend, Mr. Wilson, the American consul, I take the liberty of send ing you an order hereby for an assortment of lamps and oil to the amount of $1000, which you will please to send by first opportunity by first sailing vessel, either to this direct, or via Pernambuco (if possible in preference) or then to Rio Janeiro.” '* * * * “ For the amount of invoice you will please draw on Messrs. J. & D. Benoliel & Co., of London, 39 Mincing Lane, or upon Messi-s. Oabbo & Co., of Rio Janeiro, or on myself — all upon shipping documents at 30 days’ sight, if on Brazil; if on London, customary.” This letter reached Eulton & Co. under cover from Mr. Wilson, who, at the same time, wrote to them:— “ Ship through H. H. Swift & Co., 80 South street, New York, by the first vessel, either to this port or to Pernambuco or Rio Janeiro. If to either of the latter places, have the goods reshipped to this port by the Brazilian steamer.” Eulton & Co., not being in the business themselves, bought for the plaintiff from the defendants, a quantity of oil, &c., in accordance with the directions contained in plaintiff’s letter. On the 29th of September 1862, the defendants wrote to plaintiff: — ■ “Dear Sir : — We have shipped you, per order of Messrs. Eulton & Co., this day, the following: 155 boxes Refined Oil, 21 “ Lamps, 4 “ Chimneys, &c., as per enclosed invoice. The original invoice will be attached to draft on J. & D. Benoliel & Co., London, on whom Messrs. Eulton & Co. have drawn in our favor at 60 days. We will send you all the bills of lading, duplicates, original being attached to draft, so soon as we get them. “ Hoping that this, our first transaction, may be approved by you, and that we may hear from you again direct, not through third parties, we remain.” Accompanying this letter was an invoice of the goods sent, amounting to $1029.69. This letter with the invoice was received in due course of mail by the plaintiff. The goods were consigned by the defendants (for the purpose of shipping to the plaintiff) to H. H. Swift & Co., New York, with instructions to ship them to the plaintiff at Bahia, but not giving them the other instructions as to shipment, contained in the letter to Eulton & Co. Transportation for that • amount of goods direct to Bahia could not be obtained at New York, and the consignees so advised the defendants; after two or three months, the defendants, without advice to the plaintiff, ordered the goods to be sold, which was done, and the proceeds remitted to the defendants, the goods having in the mean time greatly advanced in value. Both parties submitted points to the court below. The opinion of the Supreme Court makes it unnecessary to give any other than the 1st, 2d, 4th, and 5th points of the plaintiff, which were:— 1. Immediately upon the shipment at and from Pittsburgh of the oil and lamps in question, by the defendants to the plaintiff at Bahia, Brazil, upon the plaintiff’s order, the right of property in said goods and chattels passed to and vested in the plaintiff. 2. If the jury believe from the evidence, that the defendants, without the consent or knowledge of the plaintiff, and without first advising with him in relation thereto, directed and procured the sale of said goods and chattels whilst the same were “ in transitu,’> and at the city of New York, such sale was illegal and the defendants are answerable therefor in this action to the plaintiff. 4. The damages recoverable by the plaintiff are to be measured by the market price of said goods at Bahia, Brazil, at the time when they should have arrived there; and the plaintiff is entitled tef recover such price, less the invoice price and expenses, costs and charges of transportation from Pittsburgh to the plaintiff at Bahia, and until delivery to the plaintiff. 5. The testimony of Thomas F. Wilson, United States consul at Bahia, showing.the price of oil and lamps at said place in the spring of 1862, and during the succeeding eighteen months, and that such price was uniform during all that time, if believed by the jury, will furnish the proper standard by which to assess the plaintiff’s damages ; and the same are to be assessed in accordance with the principles laid down in the 4th point. All these points were affirmed by the court (Sterrett, P. J.)- There was a verdict for the plaintiff for if900. The affirmance of these points, with other things, was assigned for error. By the terms of the order from the plaintiff, H. H. Swift &. Co. were made his agents to receive the goods from Fulton & Co., at New York, and ship them to him; and, therefore, this arrangement fixed the circumstances and place of delivery, which was New York. The conditions 'on which the plaintiff agreed to pay were, that Swift & Co. shipped them to Bahia, and'received a bill of lading therefor to attach to the bill of exchange. The goods, therefore, did not become the property of the plaintiff till they were shipped by Swift & Co. Swift & Co. were the agents of the plaintiff, who was bound by their acts, and when they notified the defendants that they could not ship the goods, the defendants might do as they pleased with them: Morberger v. Hackenberg, 13 S. & R. 26; Walter v. Ross, 2 W. C. C. R. 283. Immediately on the shipment of the goods from Pittsburgh they were the plaintiff’s, and at his risk: Story on Sales, § 306; Hilliard on Sales 102, et seq.; Angell on Carriers, § 497; Summeril v. Elder, 1 Binn. 106. The defendants were bound to show a clear necessity for a sale, as in case of a shipmaster: Abbott on Shipping 367. This was an illegal sale of goods in transitu, and the instructions as to the measure ’of damages were in accordance with the rule in Eby v. Schumacher, 5 Casey 40 ; and are sustained also by Watkinson v. Laughton, 8 Johns. 213 ; Gillingham v. Dempsey, 12 S. & R. 183 ; Warden v. Greer, 6 Watts 424; Angell on Carriers, § 482, et seq.; Hilliard on Sales 337 ; Story on Sales, §§ 412, 449 ; Sedgwick on Measure of Damages 356.