Pullman Palace Car Co. v. Globe Rolling Mill Co.

4 Ohio C.C. 301

• Court: Ohio Circuit Courts
• Decided: January 15, 1890
• Status: Published

Opinion

mith, J.

The facts in this case, as they appear from the bill of exceptions, which contains all of the evidence, are substantially these:

First — On Mav 20, 1887, the plaintiff company contracted to sell to Joseph Bros, a lot of old axles then in the yards of the Cincinnati Southern Railroad Company, at 11.20 per 100 pounds. There was no stipulation as to the time of payment. On the 25th of May, the company gave to Joseph Bros., at their request, an order on the railroad company to deliver to them the axles, so they might be weighed, and the amount be ascertained. They received them from the railroad company, and had them weighed, and thereupon a bill therefor was presented to Joseph Bros., probably on the 27th of May, and payment demanded by a messenger, but as Joseph Bros, claimed some small allowance for dirt on the axles, the. bill was returned to the compan}', which consented to the deduction, and on the 28th it again returned the bill as corrected for payment. It was not then paid, the excuse being that the head of the firm was out of the city. The 29th was Sunday, and the 30th Decoration day, and the bill' was not again presented until the 31st, when the firm declined to pay at*all, on the ground, as alleged, that the car company’s office, at Chicago, owed them $200 or $300, and that they had now got the company where they wanted it.

Second — On the 28th of May, while plaintiff was trying to obtain the payment of its bill, Joseph Bros, had contracted to sell the axles to the Globe Rolling Mill Company, and delivered the same to such company on that day. On the morning of June 1, between 9 and 10 o’clock, Mr. Matthews, the attorney of the plaintiff, by telephone, notified .the defendant that the axles belonged to the plaintiff, and demanded their possession, which was refused. Sometime during the same morning, but whether before or after this notification, does not appear, the defendant gave to the collector of Joseph Bros., a check for $110, the price of the axles, on the First National Bank of this city, which was deposited in the Ohio Valley National Bank, sometime before 1 P. M. of said day, and payment of which might have been stopped by the defendant notifying the bank on which it was drawn, before 4 P. M. of said day. The gooda were replevied by the plaintiff from the defendant on said 1st day of June.

On the trial of. the case the court charged the jury, “that their verdict must be for the defendant, unless it appeared from the evidence that notice of plaintiff’s rights and claims was given to defendant, not only before the defendants paid the Josephs for the axles, but also before the contract of purchase for the axles entered into between defendant and the Joseph Bros, had been completed by delivery of the axles to defendant.” This was substantially the whole charge of the court, and there was no modification thereof. As there was no claim that there had been any such notice before the delivery of the goods, it was in effect a direction to the jury to return a verdict in favor of the defendant, which was done. V/as this charge right ?

There being no stipulation in the contract between the plaintiff and Joseph Bros, as to the time of payment for the axles, in law it was a sale for cash, and the delivery of the goods and the payment therefor were to be simultaneous and concurrent acts. The plaintiff could allow the articles to go into the possession of the purchaser to be weighed, but unless something more than this was done to waive its right to immediate payment, this was not an absolute delivery, and no title passed (as between the parties), to the purchaser, until the price was paid, and the plaintiff had the right, on the failure to pay, to reclaim the axles from Joseph Bros., the evidence tending strongly to prove that the latter had entered into this scheme to outwit the plaintiff. See 23 Ohio St. 311, 1st Circuit Court Rep. 453. Very clearly there was no such waiver on the part of the plaintiff, for it diligently sought the payment of its bill, until it found that the goods had been transferred to the defendant, when it at once replevied them.

Mortimer Matthews, for plaintiff in error. Kramer & Kramer and Mr. Wolfstein, for defendant in error.

It is true that Joseph Bros, having obtained the possession ■of these goods with the consent of the plaintiff, might by a sale of them to a bona fide purchaser (who without notice of the defect in the title of the vendor, had paid for them), give to such purchaser a good title thereto. But if the sale was made to a person who before payment therefor, or incurring liability on account of it, had notice of the claim of the real owner, he would stand in no better position than his vendor.

The question then is, was the defendant a bona fide purchaser, and on whom does the burden of proof rest as to this ? It is to be noted in this case that while the plaintiff offers evidence showing that the defendant had notice of plaintiff’s claim to those axles, between 9 and 10 in the morning of June- 1st, the defendant offers no evidence tending to show that the payment was before the notice; but contents itself with proving that some time during that same morning, it gave a check to Joseph Bros, for the price of the axles, the payment of which might easily have been stopped. As this fact was peculiarly in its own knowledge, and no proof as to this was offered, the presumption is strong .that the check was given after the notice was received. We think therefore, that there was sufficient evidence to show that it was not a purchaser in good faith. But independently of this, we think the law is, that in such case the burden is on the defendant to show that he was a bona fide purchaser in good faith, having paid for the goods or incurred liability therefor, before the notice. Benjamin on Sales, sec. 433, Note i, and cases cited.

If this be the law applicable to the case, it is evident that the charge of the court was erroneous. It was not shown that the defendant was a. bona fide purchaser, and the instruction that the defendant was entitled to recover unless it appeared that it had notice of plaintiff’s claim before the goods were delivered to it, was not the law. The judgment of the common pleas will therefore be reversed on account of such error, and the action of the court in refusing to grant a new trial on the ground that the verdict was against the evidence.