Arnold v. Prout

An agreement that a quantity of ale, otherwise proved to have been sold and delivered by the plaintiffs to the defendant in Ogdensburg, New York, to be forwarded by railroad to Manchester, New Hampshire, should remain good for a reasonable time after it reached its destination, and that, if destroyed in the transit through any fault of the plaintiffs, they should bear the loss, would not be evidence tending to prove that Manchester was the place of delivery, or that the sale was not completed in New York.

Assumpsit, by Arnold & Co. against Michael Prout, to recover pay for ale to the amount of $782, and casks, barrels, and hogsheads, §166.50, sold and delivered by the plaintiffs to the defendant. The plaintiffs were brewers of ale at Ogdensburg, N. Y., and the defendant was a dealer in the article at Manchester, N. H. In the fall of 1865, the defendant was at the plaintiffs’ brewery in Ogdensburg, and there was talk about ale, but none was then ordered. Afterwards the defendant ordered the ale in question by the following letter: Manchester, N. H., Nov. 18,1865. . Mr. Arnold : Sir — I wish you would make me a car-load of that nice ale me and you spoke about the last time I saw you. Please to write me a few lines. YoursTruly, M. PROUT. The plaintiffs brewed ale to fill the order, and delivered it to a carrier in Ogdensburg, directed to the defendant, Manchester, N. H. The ale arrived in Manchester, and was delivered by the Concord Railroad to the defendant, who gave them a receipt for it, paid them the freight on it from Ogdensburg, carried it to his place of business, and used and disposed of it soon after in the usual course of his trade. It was of good quality, and arrived in good condition. Jacob F. Arnold, one of the plaintiffs, testified that the ale was to be delivered to the carrier in Ogdensburg, and that there was no agreement as to delivery in Manchester; and on cross-examination, that, according to the custom and course of their business, if ale was frozen, or burst, or destroyed in transit, it was their loss and not that of the buyer ; and further, on reexamination, “ when we sell a man ale, we warrant it for a reasonable length of time : if found bad, we make it up to keep friends, and keep his trade. If anything happens to ale in transit, not through our fault, it is loss of buyer. He must look to railroad company. It was the understanding between Prout and I that this ale should be good for a reasonable time after it reached him in Manchester. I did not knew the laws of New Hampshire prohibited sale of ale, at time of sale. ’ The defendant had bought ale before of the plaintiffs, and testified that ale from them bad always been delivered to him in Manchester, and lie paid freight on it from Ogdensburg; that Mr. Morgan, one of the plaintiffs, on one occasion settled with him a claim for damages on a bill of ale which turned out to be of poor quality after it arrived in Manchester. No other evidence was introduced bearing upon the question where this ale was delivered. Upon this evidence the court ordered a verdict for the plaintiffs, which the defendant moved to set aside. The defendant moves to set aside the verdict and for a new trial, on the ground that there was competent evidence introduced by him to show that said ale was delivered in Manchester, N. H., where the sale thereof was illegal. Dailey v. Blake, 35 N. II. 29 ; Hazelton v. Batch-elder, 44 N. H. 40 ; ch. 1, sec. 31, and cli. 99, secs. 14, 23, 24, of Gen. Stats. Evidence was offered by the defendant tending to show that ale was intoxicating liquor; and if deemed material, the defendant desires to amend the above case in this respect. 1. The defendant’s letter, under the circumstances, is to be understood as an order to make and fonvard a car-load of ale. If the plaintiffs were to make a car-load*, they were to put it on to the cars directed to the defendant at Manchester. No other construction would be sensible. And upon such a construction, the property passed the moment the ale was delivered to the carrier for the defendant. Garland v. Lane, 46 N. H. 245, 248; Woolsey v. Bailey, 27 N. H. 217 ; Smith v. Smith, 27 N IL 244 ; Bill v. Spear, 50 N. H. 253. 2. The understanding that the ale should be good a reasonable time after it reached the defendant in Manchester did not prevent the property passing on the delivery to the railroad at Ogdensburg, and in no way affects the case. Boothhy v. Plaisted (recently decided). 3. It is immaterial whether ale previously purchased is to be regarded as sold in the one place or the other, for the sale in this case was upon the defendant’s order and was complete at Ogdensburg. See cases before cited. 4. But Prout testified to no facts from which it could follow as a legal conclusion that Manchester was the place of delivery for any of the ale previously purchased. Delivery by the carrier to him was at ■ Manchester ; but delivery to the carrier for him was in every case at Ogdensburg. All that Prout meant was that the manual delivery of the ale by the employees of the road was at Manchester. But he admitted that he had always paid the freight; and, if necessary, we wish the case amended so as to show these facts. Upon all the facts stated by Prout, the sale in every case was complete at Ogdensburg; and there was nothing for the jury, for they could have found but one way.