Marsh v. Wickham & Wickham

14 Johns. 167

Opinion

Per Curiam.

The point in this case is, whether the’leather in question was delivered to the defendants to sell for the plaintiff upon commissions, or whether it was an absolute purchase; and this must be collected from the receipt which was given at the time when the leather was received. This receipt is somewhat obscurely drawn; but the several stipulations and provisions in it are much more reconcilable with the construction, that the leather wás purchased, than that it was received by the defendants to sell on commission. The rate at which the defendants were to pay, or the deduction which was to be made from the price fixed to the leather, is inconsistent with the construction, that it was a mere delivery to sell on commissions. This could not be the rate of commissions, for the deduction was to be one shilling on each side of the upper leather, and two shillings on each pound, of the soal leather. The privilege which the defendants had of returning what remained unsold of the leather, was a stipulation for the benefit of the defendants in their payment for the leather. If it was a delivery to sell on commissions, there would have been some provision as to compensation or rate of commissions. But there is none, for it appears clearly, that the deduction mentioned in the receipt, could not have been intended as such. By the receipt, the defendants also stipulate to pay for the leather at a certain rate; this is not consistent with the notion of its being a bailment. A certain deduction was to be made in the price, which must be understood to be the price of purchase. It must therefore be considered a sale, with the privilege to the defendants of returning what remained unsold. The reason of the particularity in the designation or description of the leather, might have been occasioned by the privilege to return what remained unsold, so as to prevent imposition. The paro~ testimony was inadaiis~i~ ble. If there is any ambiguity, it is latent and not explainable. If it was a purchase, the destruction by fire was the loss of the' defendants alone. The mdtion for new trial must, therèfoi~e, be denied.

New trial refused.