Fey v. Smith

3 Daly 386

Opinion

By the Court.

Footnotes

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Robinson, J.

Whatever question might arise under the pleadings from the averment in the answer, that “ the plaintiff requested the defendant to purchase for him fifty-six barrels of whiskey, and pay for the same, and procure the same to be delivered in bond, &c., and that plaintiff agreed with defendant, that he would pay the defendant for said whiskey, the price and sum of forty cents per gallon, &c.,” none such could arise upon the proofs given by the plaintiff himself by which it appeared that the transaction was simply an agreement, made by plaintiff in August, 1867, to purchase from defendant fifty-six barrels of whiskey, then owned by other parties, and being in a distillery at Utica, which defendant was to purchase and bring to Hunter’s point, paying transportation, and have ready for delivery there, at a bonded warehouse, to be paid for when it arrived and was inspected.

The whiskey arrived at the bonded warehouse about September 16, 1867, was bonded and inspected- on or about the 26th of the same month, and partial payment was made on account. Disputes arose as to the true quantity to be paid for by plaintiff, but there was no evidence to show either a payment in full or any delivery of the whiskey to him.

Under these circumstances, no title ever passed, and, on the plaintiff’s own testimony, an action for the conversion of the goods was not maintainable. The Judge erred in denying the motion for a dismissal of the complaint. He also erred in directing the jury to find a verdict for the plaintiff for $2,218.95, and that the various exceptions taken by defendant should be heard in the first instance at General Term. The general denial of the case stated in the complaint, was not avoided by the statement in the answer above referred to, that the defendant was to purchase the whiskey for the plaintiff, it being subsequently distinctly averred that theplaintiff should afterwards pay the defendant for the whiskey, forty cents per gallon; that he would take the measure and guage by which defendant purchased, and would bond the whiskey upon its arrival at Hunter’s point, and alleged his failure to pay for the whiskey on arrival, and, being placed in a bonded warehouse, to bond it.

This, in substance, merely alleged an entire agreement with special details and breaches of its various stipulations on the part of the plaintiff, but disclosed no intervention as a broker or agent for plaintiff in purchasing the whiskey.

The facts it presented, if adopted as against the affirmative proofs produced by plaintiff, as to the nature of the transaction, disclosed conditions precedent, to wit: the payment of the price agreed and the bonding of the goods (so as to relieve him from responsibility for the goods, under the Revenue Laws), which were necessary to be done to effect a complete delivery, and vesting of title'in plaintiff'.

Regarding the answer irrespective of the proofs, as an admission of plaintiff’s case, the Judge before whom the cause was tried, took the case from the jury, ordered a verdict for a particular amount upon evidence that was conflicting and uncertain as to the extent of the damages allowable in any event, and that the exceptions should be heard, in the first instance, at General Term.

The Judge could not take the assessment of damages from the jury, nor suspend judgment and order the exceptions to be heard, in the first instance at General Term, except upon an uncontroverted state of facts. The judgment should be reversed and a new trial ordered, with costs to abide the event.

Judgment reversed.

Present Daly, Ch. J,,. Robinson and Larremore, J.J.