Barton v. Kane

Where goods are sent to order, a delivery to the carrier will not constitute a delivery to the consignee so as to pass the title and make the consignee liable for them, if they do not correspond in quantity and quality with the order. To entitle himself to recover in such a case, the consignor must show that the consignee actually received and accepted the goods. Where the alleged defect is in the quality of the goods, it is sufficient evidence of acceptance that the purchaser has not returned or offered to return them, or notified the seller of his non-acceptance of them. In an action for the price of goods sold by sample, where the defense was that the goods were inferior to the sample, and unfit for use, it was error to admit evidence on the part of the plaintiff that other goods of the same kind were sent by him at the same time to other purchasers, who made no complaint of their quality. Whether leading questions shall be permitted m the direct examination of witnesses, rests in the sound discretion of the court before which the trial is had; and its decisions in respect to them are not the subject of exception. To justify the reversal of a judgment on the ground of the improper admission of evidence, it must appear that the party objecting has been or may have been injuriously affected by such admission. Where a witness was asked several questions pertaining to the same point in immediate succession, and an objection to the first, which was merely preliminary to the others, was improperly overruled, and exception taken: ffeld, that the objection might be regarded as going not merely to that question, but to the others which sprung naturally from it; and the party was allowed the benefit of his exception as to the whole. If, after a motion for a nonsuit is denied, the defendant himself supplies the evidence upon the absence of which his motion was founded, the judgment will not be reversed because the nonsuit was improperly refused. It is a general rulé; that to entitle one party to give evidence of the contents of a private document in the hands of another, reasonable notice must be proved to have been given to the party in possession, to produce it at the trial, and notice at the trial, without showing that the party has the document with him in court, is insufficient.

APPEAL from the Circuit Court for Milwaulcee County. Action to recover the contract price of cigars and tobacco alleged to have been sold and delivered to the defendant by the plaintiff. The answer, besides a general denial, set up a special defense as follows: That on the 30th of October, 1860, one Schrauber, as the plaintiff’s agent, exhibited to the defendant, at Milwaukee, samples of cigars well seasoned and in excellent condition for use, &c.; that the defendant then ordered, through said agent, five thousand cigars similar to the samples to be delivered at the American House in Milwaukee, of which the defendant was proprietor; that on the 29th of December following, there arrived at said American House a lot of cigars by consignment from the plaintiff on account of said order, being those for which this action was brought; that the defendant immediately examined them, and found that they were of a greatly inferior quality to the samples, that they were damp, green, unseasoned and wholly unfit for use, and a greater quantity than the defendant had ordered, and that the defendant therefore refused to accept the same, or any part thereof; that immediately after, he gave the plaintiff notice by mail that the cigars were not such as he had ordered, that he could not accept them or any part of them, and that they were subject to his order; that he thereupon carefully stored the cigars away, subject to the plaintiff’s order, and was always ready and willing to return them when called for, until on the 4th of July, 1861, they, with said American House, were destroyed by fire, without the fault of the defendant. On the trial, the plaintiff read in evidence the deposition of said Schrauber, which was, in substance, as follows: That in October and December, 1860, he was agent for the plaintiff, and in the latter part of October showed the plaintiff samples of cigars, and took an order from him for five thousand at $25 per thousand; they were to be of the same quality of stock, and as good as the samples. The defendant objected to this evidence of a sale by sample, on the ground that it did not conform to the allegations of the complaint, and was irrelevant ; but the objection was overruled. The witness continued: “The cigars were sent in December. I packed them.” Question: “ Did they correspond with the samples ?” Objected to as leading, and objection overruled. Answer: “They did.” The plaintiff then asked the witness several questions relative to the condition and quality of the cigars sent to the plaintiff, which the defendant objected to as leading, but which were allowed by the court. The answers tended to show that the cigars sent the defendant were equal in quality to the samples. Question: “ Did you, about the time you sent cigars to the defendant, ship any of the same cigars to other parties for the plaintiff?” Objected to as irrelevant, and (Objection overruled. Answer: “I did.” Question: “Were ny complaints made to you or the plaintiff, that they were damp, unseasoned or unfit for use?” Answer; uN*o complaint was made.” Question: “To bow many other parties did you ship the cigars ?” Objected to as irrelevant, and objection overruled. The witness stated, in answer, the names of various persons or firms in different states, to whom he had • shipped quantities varying from five to twenty-five thousand, and that he sold in all five or six hundred thousand at that time. On cross-examination the witness said he did not know whether the cigars were accepted by the defendant — Simon Quintan, for the plaintiff, testified that he saw the cigars in question packed and sent, and that they were of the same quality as the samples, and in better condition; that there were 5,000 ordered by the defendant, and about 5,625 sent. A letter sent by the witness, for the plaintiff, to the defendant, was put in evidence. It was dated December 19, 1860, and contained an invoice of the cigars, charging the defendant with the whole quantity sent, and a statement as follows: “ I send you a few more than ordered, so as to fill the case.” Witness was shown another letter from the plaintiff to the defendant, dated January 4, 1861, acknowledging the receipt of a letter from the defendant dated December 29, 1860; and testified that the plaintiff did receive a letter from the defendant, and that said letter of January 4th was in his (witness’s) handwriting. Bpre the defendant asked the plaintiff by his counsel to produce said letter of December 29th “ according to the notice given him to do so but the counsel and the witness “ declined producing the same, and said they did not have it.” The bill of exceptions does not show that any notice had been given the plaintiff to produce said letter. The plaintiff having rested, the defendant moved for a non-suit on the grounds, 1. That more goods were shown to have been sent by the plaintiff to the defendant than the quantity specified in the agreement of sale, while there was no proof of their having been accepted. 2. That the proof did not conform to the allegations of the complaint. Motion denied. The defendant then introduced evidence tending to show that tbe cigars in question were damp and not well seasoned ; that they were inferior to the samples by which he bought; that immediately after receiving and examining them, he stored them away, and that they remained so stored until the American House, with its contents, was destroyed by fire. Gr. S. Cole, who was employed in the American House at the time the cigars were received, testified that he assisted the defendant in examining them, and .added: “After we made the examination, the defendant wrote to Barton on the same day; I saw the letter.” The defendant asked the wittíess to state what was in the letter; but the plaintiff objected to the evidence, and the court sustained the objection. The defendant showed by the same witness that the railroad bill for freight upon said cigars was sent up to him with the goods. The bill, which was put in evidence, purported to be for the transportation of “ one case of cigars.” As a witness in his own behalf, the defendant testified: “ After putting the cigars away, I wrote a letter to Mr. Barton on the same day, addressed to him at his place of residence, which was put into the postof&ce, with the postage paid. The letter contained a notice to the effect that we had received some cigars from him on that day that were not like the samples from which we ordered, and that they were wholly unfit for use, and so damp and green that I could not use them, and would hold them subject to his order. I think I also mentioned that he had shipped more than I ordered. I received an answer from Barton." The defendant then put in evidence a letter which he said was Barton's answer, being the above mentioned letter of January 4, 1861, which was as follows : “Your favor of the 29th ult. is at hand, and contents noted. I am sorry that we should have misunderstood your order. However, if you will set the cigars in a dry, warm' place, you will find that in ten days they will be ready for use. We have a great many orders to fill, and it is almost impossible to keep our goods long enough to season, but by a judicious selection of stock we try to give satisfaction to our customers. Hoping that you will give the cigars a fair trial, I am,” &c.— Mr. Quintan was recalled by the plaintiff, and testified that he took charge of the plaintiff’s business correspondence, received and answered all his letters, and had never received any such letter as the defendant described, notifying Mr. Barton that the cigars were subject to his order, and that the defendant would not receive them. Verdict for the plaintiff; motion for a new trial overruled ; and judgment' upon the verdict; from which the defendant appealed. 1. Where goods sent exceed in quantity the order, the person ordering is not bound to accept. 2 Hill, 138 ; 6 id., 210. The shipper must then show an actual and unequivocal acceptance by the person ordering, to hold him liable. 3 Johns., 635 ; 7 Cow., 86; 1 Corns., 270; Hilliard on Sales, 135. 2. The court erred in sustaining the objection to the question put to the witness Cole, as to the contents of the letter from the defendant to the plaintiff, dated December 29, 1860. 1 Greenl. Ev., 668, 669, and notes.