Newcomb v. Cramer

9 Barb. 402

• Court: New York Supreme Court
• Decided: September 2, 1850
• Status: Published

Opinion

By the Court, Willard, J.

As the charge of the judge is not set forth in the case, and was not objected to, we must presume that it fairly submitted the questions of fact. The weight of evidence as to the quality and value of the wagons, and as to whether the plaintiffs had in fact accepted them, was clearly with the plaintiffs, and warranted the verdict.

The errors mainly complained of are, 1st. The reception in evidence of the letter of the plaintiffs to Mr. Thompson, dated April 23,1846. It was objected to because it was the acts or declarations of the plaintiffs themselves. The wagons were not received by the plaintiffs at their residence, in Troy, nor did they know of their existence till the opening of canal navigation, in April, 1846, and immediately on seeing them, they wrote the letter in question to Mr. Thompson, their attorney, declining to accept them on the contract, pointing out their defects, and suggesting a course for the defendants to adopt, and directing Mr. Thompson to communicate it to the defendants, which he accordingly did. This was undoubtedly admissible in evidence. It was the notice by the plaintiffs of their non-acceptance of the wagons, and of their specific objections to them. It is not material that it was not addressed to the defendants. It was obviously intended to be shown to them, and was read to them by Mr. Thompson.

It is insisted in the next place, that the acts of the plaintiffs amounted to an acceptance of the wagons. If this be so, the verdict was of course wrong. The wagons, by the terms of the note, were deliverable at Comstock’s Landing the 27th January, 1846, to or for the plaintiffs. They were on that day delivered to Kellogg, at the Landing, and he gave a receipt to the defendants, saying that he had received the wagons in store for O. F. Thompson, consigned to the plaintiffs, Troy, N. Y. Kellogg had the only storehouse at Comstock’s Landing, which was 11 miles from Mr. Thompson’s, in Granville, and 64 from the plaintiffs’, in Troy. Mr. Thompson was not authorized by the plaintiffs to receive the wagons ; and there is no evidence that the latter were apprized of the delivery, until their arrival in Troy, in April following.

Under a contract like this, it was the duty of the defendants, after making the delivery at the only storehouse at Comstock’s Landing, to notify the plaintiffs thereof, without delay. Until such delivery and notice to the plaintiffs, the latter were not in circumstances to object to the quality of the articles ; nor could the title pass. (See Wood v. Tassell, 6 Adol. & Ellis, N. S. 234; Story on Contracts, 801.) As Thompson was not the agent of the plaintiffs, his delivering up of the original note, was a nullity. He had no power to accept the wagons. Notice to him was not notice to the plaintiffs. The defendants knew that Thompson had no right to give up the note. Their obtaining possession of it, was a fraud upon the plaintiffs.

The verdict and judgment were right; and the judgment should be affirmed.

Judgment affirmed.