Wokden, J.
Suit by the appellants against the appellee on a contract, as follows:
“ Edinburgh, December 21,1854.
“ I have this day sold Ricketts and Daily ten thousand bushels of good merchantable corn, to be delivered them on the cars at New Bradford, about thirty miles north of Lafayette, they to furnish cars to transport the same, and should they not furnish cars enough to carry all of it, by the 15th day of February ensuing, they are to receive the balance of it in pens, on the railroad. Twenty-six hundred bushels of the corn is now in pens, and is to be left until the last, and is at their risk as to damage by rain; they to pay me for the same at the rate of 45 cents per bushel, as follows: An order on James Mix, Esq., for five hundred dollars, and pay my acceptance for three thousand dollars, due about the 15th of February ensuing, and payable in the city of New York, and the balance when the corn is delivered. If the twenty-six hundred bushels above mentioned, should be taken off by the 15th of February, I am still bound to attend to the shipping of it. In testimony,” &c. [Signed] “ Cormacan Hays.”
There was a supplemental contract between the parties, but as no question arises upon it, and as the above con[183]*183tract is not varied by it in any matter upon which any question arises, it need not be here stated.
It is averred in the complaint that the plaintiffs have paid the purchase-money for the corn, but that, although the plaintiffs furnished cars, &c., only nine thousand four hundred and thirty-nine bushels of the corn has been delivered, and that four thousand seven hundred and fourteen, bushels of that so delivered was not good merchantable corn, but was greatly damaged and of inferior value, and worth ten cents less per bushel, than if it had been good merchantable corn.
Answer, that the defendant delivered to the plaintiffs, as agreed, seven thousand four hundred bushels of corn, under said agreement, and, also, the two thousand six hundred bushels mentioned in the contract as being in pens, all of which corn was received' by the plaintiffs, on said cars, under said contract.
The replication denies the delivery of all the corn, and denies that what was delivered, was received by the plaintiffs as good merchantable corn, under the contract.
There were other matters pleaded, but the above statement of the pleadings is sufficient to an understanding of the questions presented.
Trial by jury; verdict and judgment for the defendant, over a motion by plaintiffs for a new trial.
On the trial it appeared that all the corn contracted for had been delivered, provided the two thousand six hundred bushels described in the contract as being in pens, held out.
In relation to this lot, it was proven by a witness named Watson, that when the corn was put into the pens, in November and December, 1854, there were two thousand six hundred and eleven bushels. It was also proven by another witness, Averett, who superintended the getting, of the cars for the plaintiffs, and weighing the corn, and was present when it was weighed and placed upon the cars, in June, 1855, that there were then but two thousand three hundred and ten bushels.
The Court'charged the jury, in relation to this point, as follows:
[184]*184“ The corn mentioned in the contract as being in pens, was agreed upon at two thousand six hundred bushels, and. if you are satisfied that there was that amount placed in the pens, and was there when the contract was made, and there is no evidence tending to show that any portion of it was removed, wasted,'or injured, except by rain, and if you believe that all the corn put in pens was shipped to the plaintiffs, then you will not consider the testimony of Averett, that there was only two thousand three hundred and ten bushels in the pens, in May and June, 1855, and that testimony is withdrawn from you, and, in such case, you should find according to the quantity sworn to by Watson, namely, that there were two thousand six hundred bushels in the pens.”
To this charge the plaintiffs excepted.
The plaintiffs asked the following charge, viz.:
“ If there was a deficiency in the quantity of corn delivered by the defendant under this contract, the plaintiffs are entitled to recover the value of as much corn as was deficient, whether the deficiency arose from the fact that there was not two thousand six hundred bushels delivered on the cars from the pens mentioned in the contract, or otherwise.”
This charge was refused, but modified and given as follows:
“ If there was a deficiency in the quantity of com delivered by the defendant under this contract, the plaintiffs are entitled to recover the value of as much corn as was deficient.”
Exception was taken.
We suppose that when the Court instructed the jury that “the corn mentioned in the contract as being in pens, was agreed upon at two thousand six hundred bushels,” it had reference to the terms of the written contract in question, as there was no other evidence of such agreement, and had there been, it would have been for the jury to determine whether such agreement existed. The terms of the contract do not, in our opinion, sustain the proposition thus laid down by the Court to the jury. The contract is [185]*185for the delivery of ten thousand bushels of corn, and specifies that “ two thousand six hundred bushels of the corn is now in pens, and is at their (the plaintiffs’) risk as to damage by rain.” There is nothing in the contract, from which it can be fairly implied that the plaintiffs accepted any particular corn “in pens” as being two thousand six hundred bushels. To be sure that part of the corn in pens to the amount of two thousand six hundred bushels, was to be at the plaintiffs’ risk as to damage by rain. This stipulation would require the plaintiffs to receive two thousand six hundred bushels of corn from the pens, although it might be damaged by rain after making the contract; but it would not require them to receive less than the' two thousand six hundred bushels as the part specified to be in pens. There was no specific parcel of corn agreed upon as two thousand six hundred bushels. If the contract be construed to mean that the corn in the pens was to be taken at two thousand six hundred bushels, the plaintiffs would be entitled to it for that amount, whatever might be the true amount. Now, suppose that the corn, instead of falling short of the quantity specified, had greatly overrun it, would the plaintiffs have been entitled to it all, or for the two thousand six hundred bushels only? We think not. The contract required the delivery of ten thousand bushels, and only that amount, whether that in the pens fell short of, or overran the two thousand six hundred bushels.
But the counsel for the appellee say of the charge given, that, “its only tendency was to charge the jury that if there were two thousand six hundred bushels of corn in the pens when the contract was made, and none of it had been removed, but all was delivered to the plaintiffs, the shrinkage or loss must be borne by them, and not by the defendant.” Admitting this to be the effect of the charge, it is still objectionable.
Free access — add to your briefcase to read the full text and ask questions with AI
Wokden, J.
Suit by the appellants against the appellee on a contract, as follows:
“ Edinburgh, December 21,1854.
“ I have this day sold Ricketts and Daily ten thousand bushels of good merchantable corn, to be delivered them on the cars at New Bradford, about thirty miles north of Lafayette, they to furnish cars to transport the same, and should they not furnish cars enough to carry all of it, by the 15th day of February ensuing, they are to receive the balance of it in pens, on the railroad. Twenty-six hundred bushels of the corn is now in pens, and is to be left until the last, and is at their risk as to damage by rain; they to pay me for the same at the rate of 45 cents per bushel, as follows: An order on James Mix, Esq., for five hundred dollars, and pay my acceptance for three thousand dollars, due about the 15th of February ensuing, and payable in the city of New York, and the balance when the corn is delivered. If the twenty-six hundred bushels above mentioned, should be taken off by the 15th of February, I am still bound to attend to the shipping of it. In testimony,” &c. [Signed] “ Cormacan Hays.”
There was a supplemental contract between the parties, but as no question arises upon it, and as the above con[183]*183tract is not varied by it in any matter upon which any question arises, it need not be here stated.
It is averred in the complaint that the plaintiffs have paid the purchase-money for the corn, but that, although the plaintiffs furnished cars, &c., only nine thousand four hundred and thirty-nine bushels of the corn has been delivered, and that four thousand seven hundred and fourteen, bushels of that so delivered was not good merchantable corn, but was greatly damaged and of inferior value, and worth ten cents less per bushel, than if it had been good merchantable corn.
Answer, that the defendant delivered to the plaintiffs, as agreed, seven thousand four hundred bushels of corn, under said agreement, and, also, the two thousand six hundred bushels mentioned in the contract as being in pens, all of which corn was received' by the plaintiffs, on said cars, under said contract.
The replication denies the delivery of all the corn, and denies that what was delivered, was received by the plaintiffs as good merchantable corn, under the contract.
There were other matters pleaded, but the above statement of the pleadings is sufficient to an understanding of the questions presented.
Trial by jury; verdict and judgment for the defendant, over a motion by plaintiffs for a new trial.
On the trial it appeared that all the corn contracted for had been delivered, provided the two thousand six hundred bushels described in the contract as being in pens, held out.
In relation to this lot, it was proven by a witness named Watson, that when the corn was put into the pens, in November and December, 1854, there were two thousand six hundred and eleven bushels. It was also proven by another witness, Averett, who superintended the getting, of the cars for the plaintiffs, and weighing the corn, and was present when it was weighed and placed upon the cars, in June, 1855, that there were then but two thousand three hundred and ten bushels.
The Court'charged the jury, in relation to this point, as follows:
[184]*184“ The corn mentioned in the contract as being in pens, was agreed upon at two thousand six hundred bushels, and. if you are satisfied that there was that amount placed in the pens, and was there when the contract was made, and there is no evidence tending to show that any portion of it was removed, wasted,'or injured, except by rain, and if you believe that all the corn put in pens was shipped to the plaintiffs, then you will not consider the testimony of Averett, that there was only two thousand three hundred and ten bushels in the pens, in May and June, 1855, and that testimony is withdrawn from you, and, in such case, you should find according to the quantity sworn to by Watson, namely, that there were two thousand six hundred bushels in the pens.”
To this charge the plaintiffs excepted.
The plaintiffs asked the following charge, viz.:
“ If there was a deficiency in the quantity of corn delivered by the defendant under this contract, the plaintiffs are entitled to recover the value of as much corn as was deficient, whether the deficiency arose from the fact that there was not two thousand six hundred bushels delivered on the cars from the pens mentioned in the contract, or otherwise.”
This charge was refused, but modified and given as follows:
“ If there was a deficiency in the quantity of com delivered by the defendant under this contract, the plaintiffs are entitled to recover the value of as much corn as was deficient.”
Exception was taken.
We suppose that when the Court instructed the jury that “the corn mentioned in the contract as being in pens, was agreed upon at two thousand six hundred bushels,” it had reference to the terms of the written contract in question, as there was no other evidence of such agreement, and had there been, it would have been for the jury to determine whether such agreement existed. The terms of the contract do not, in our opinion, sustain the proposition thus laid down by the Court to the jury. The contract is [185]*185for the delivery of ten thousand bushels of corn, and specifies that “ two thousand six hundred bushels of the corn is now in pens, and is at their (the plaintiffs’) risk as to damage by rain.” There is nothing in the contract, from which it can be fairly implied that the plaintiffs accepted any particular corn “in pens” as being two thousand six hundred bushels. To be sure that part of the corn in pens to the amount of two thousand six hundred bushels, was to be at the plaintiffs’ risk as to damage by rain. This stipulation would require the plaintiffs to receive two thousand six hundred bushels of corn from the pens, although it might be damaged by rain after making the contract; but it would not require them to receive less than the' two thousand six hundred bushels as the part specified to be in pens. There was no specific parcel of corn agreed upon as two thousand six hundred bushels. If the contract be construed to mean that the corn in the pens was to be taken at two thousand six hundred bushels, the plaintiffs would be entitled to it for that amount, whatever might be the true amount. Now, suppose that the corn, instead of falling short of the quantity specified, had greatly overrun it, would the plaintiffs have been entitled to it all, or for the two thousand six hundred bushels only? We think not. The contract required the delivery of ten thousand bushels, and only that amount, whether that in the pens fell short of, or overran the two thousand six hundred bushels.
But the counsel for the appellee say of the charge given, that, “its only tendency was to charge the jury that if there were two thousand six hundred bushels of corn in the pens when the contract was made, and none of it had been removed, but all was delivered to the plaintiffs, the shrinkage or loss must be borne by them, and not by the defendant.” Admitting this to be the effect of the charge, it is still objectionable. There was to be a delivery of ten thousand bushels; that is, there must be that amount when delivered, in order to discharge the contract. A delivery of what had once amounted to ten thousand bushels, but which, at the time of delivery, had fallen short of that amount, in [186]*186consequence of shrinkage or loss, would not be a complianee with the terms of the contract. The plaintiffs were to be at the risk of damage by rain, but they were still entitled to the full amount, although it might be damaged.
The jury should have been left to determine from the evidence, what amount of corn was actually delivered, as well from the pens as otherwise.
We think the Court erred in giving the charge which was given, and in refusing to give the charge asked by the defendant without modification. .For this reason the judgment will have to be reversed.
There are other questions arising in the case, upon another branch thereof, which we will proceed to examine, as they may be important on the further trial of the cause. These questions arise on the plaintiffs’ claim for damages in consequence of the four thousand seven hundred and fourteen bushels being damaged and unmerchantable. It appears by the evidence, that the above amount being other corn than that mentioned as being in pens, was damaged by rain to the extent of from five to ten cents on the bushel. The corn was delivered from Watson’s warehouse, upon the cars furnished by the plaintiffs, at New Bradford, according to the stipulations of the contract. Averett, who superintended the procuring of the cars, and the weighing of the corn, on the part of the plaintiffs, told Watson that the corn was damaged and unmerchantable, and that if it were his he would like to have it out of the other end of the crib. He says he had no authority from the plaintiffs to receive the corn. The corn was taken, however, to the plaintiffs’ distillery at Edinburgh, and there used in distilling. It appears that the- plaintiffs were apprised of the unsound quality of the corn before it was taken from the cars at Edinburgh. There was no offer to return the corn, or notice to the defendant that the plaintiffs were dissatisfied with it.
The plaintiffs asked several charges on this branch of the case, which were refused. It is unnecessary to extend this opinion by inserting these charges at length, or examining them in detail, as we are satisfied that on the facts [187]*187proven there can be no recovery upon this part of the claim.
Some of the charges were to the effect that the defendant might be held responsible as bailee for the safe keeping of the corn. The relation of bailor and bailee did not exist between the parties. The contract was executory (at least so far as all the corn, except the two thousand six hundred bushels, was concerned), and might have been discharged by the delivery of any corn of the quality mentioned. The defendant held no corn of the plaintiffs as their bailee, because no title to any particular corn passed to them by the contract. If the defendant is liable at all, it is for a breach of his contract to deliver the quality of corn specified.
No fraud is alleged or claimed, and in the absence of fraud or warranty, where a purchaser accepts and receives goods, he thereby not only waives the defects, but is concluded thereby so that he cannot recover thereafter for any patent and known defect. Here the defect in the corn was patent and known to the plaintiffs’ agent at the time the corn was delivered, and known to the plaintiffs before it was unloaded from the ■ cars and consumed by them in distilling.
The following authorities fully sustain the above proposition : Hopkins v. Appleby, 1 Stark. 477; Milner v. Tucker, 1 C. and P. 15; Cash v. Giles, 3 id. 407; Dana v. Boyd, 2 J. J. Marsh. 588; O’Barmon v. Relf, 7 Dana, 320; Kerr v. Smith, 5 B. Mon. 552; Sprague v. Blake, 20 Wend. 61. There are probably numerous other cases to the same effect, which have not come under our notice, and, perhaps, some of a contrary tendency; but the doctrine above stated is undoubtedly in accordance with the weight of authority.
The ease of Sprague v. Blake, supra, involved a contract for the delivery of wheat, which was to be merchantable, at a specified price per bushel. A portion of the wheat delivered was unmerchantable, being broken wheat, black kernels, cockle, and cheat. One Morgan was the agent of the defendant in receiving wheat, but he was not. present [188]*188when the wheat was received, but it was received by his servants. The defendant sought to avoid paying more than the value of the wheat, being less than the contract price. The Court say: “ There was here certainly no implied warranty; and, we clearly think, no express warranty. It is true, that the wheat was, by the terms of the agreement, to be merchantable. That is understood of every such contract, even without express terms, while it is executory. When the party comes, under such a contract, to deliver an inferior, unmerchantable commodity, which lies open to inspection, then is the time for the vendee to take his ground. He must then refuse acceptance, or at least as soon as he discovers what the quality of the article is, and offer to return it. When it is fully accepted, a new rule of construction arises. The executory contract is per{formed, no action lies upon that; and no defense, therefore, can be based upon it; but either must go upon an actual sale and delivery. * * The acceptance was an assent that the terms of the executory contract were fulfilled.”
In the case at bar, we need not determine whether Averett, who was the plaintiffs’ agent for the purpose of procuring the cars on which to load the corn, and for the purpose of seeing the corn weighed, had not an implied authority to receive the corn, although no express authority was given, because the plaintiffs, afterwards, and with a knowledge of its unsoundness, received the corn and distilled it.
As before remarked, no fraud is imputed to the defendant; but it is insisted that the terms of the contract amount to a warranty that the corn was of the quality stipulated for in the contract. The case of Sprague v. Blake, supra, decides this question the other way, and, we think, correctly. Here was a contract for the delivery of a certain quality of corn, and if the defendant failed to deliver corn of the prescribed quality, he might be guilty of a breach of his contract, but he cannot be said to have warranted that the corn, when delivered and accepted, should be of the quality designated. Suppose that the [189]*189com in question had been rejected by the plaintiffs, and the defendant had failed to deliver other corn of the quality specified, the defendant would clearly have been liable, not for a breach of warranty, but for a breach of his contract to deliver the prescribed quality of corn. Upon this point, the remarks of Lord Abinger, in Chanter v. Hopkins, 4 M. and W. 398, are appropriate. He there said: “A good deal of confusion has arisen from the unfortunate use of the word ‘warranty.’ Two things have been confounded together. A warranty is an express or implied statement of something which the party undertakes shall be a part of the contract; and, though a part of the contract, yet collateral to the express object of it. But in many of the cases, some of which have been referred to, the circumstance of a party selling a particular thing by its proper description, has been called a warranty; and a breach of such contract, a breach of warranty; but it would be better to distinguish such cases as a non-compliance with a contract which a party has engaged to fulfill; as if a man offers to buy peas of another, and he sends him beans, he does not perform his contract; but that is not a warranty: there is no warranty that he should sell him peas; the contract is to sell peas, and if he sells him anything else in their stead, it is a non-performance of it. So if a man were to order copper for sheathing ships— that is a particular copper, prepared in a particular manner—if the seller sends him a different sort, in that case he does not comply with his contract; and though this may have been considered a warranty, and may have been ranged under the class of cases relating to warranties, yet it is not properly so.”
The authorities cited by the appellants to show that the contract amounts to a warranty, do not sustain the position.
The first is Bradford v. Manly, 13 Mass. It. 139. This case simply decides that a sale by sample is tantamount to a warranty that the article sold is of the same kind or quality as the sample. This, we doubt not, is correct law, but it does not meet the case under consideration.
S. A. Huff, Z. Baird, and J. M. La Rue, for the appellants.
R. C. Gregory, H W. Chase, and J. A. Wilstach, for the appellee (1).
Hastings v. Lovering, 2 Pick. 214, is the next case cited, This case decides that a sale note containing the statement, “sold A. two thousand gallons prime winter oil,” amounted to a warranty that the article sold agreed with the description; but the decision was placed upon the ground that the contract was executed, and not executory. Certain specific oil passed, by the contract, to the purchaser, and herein the case differs widely from the one under consideration. There, the property having passed, if there was a breach at all, it must have been of warranty; but here, the only breach there could be, would be a failure to deliver the kind or quantity of com specified, and this, we have seen, is a mere non-performance of the contract, and no breach of warranty. The same remark is applicable to the case of Henshaw v. Robins, 9 Met. 83, next cited.
Lamb v. Craft, 12 Met. 353, is not in point, or if it be, it is against the appellant, as it was held that there was no warranty in the case.
Martin v. Roberts, 5 Cush. 126, the last case cited upon this point, is not applicable, as no warranty was involved, but a question of fraud, growing out of false representations.
These are our views in relation to this branch of the case; but the judgment must be reversed for the reason before given.
Per Curiam.
The judgment is reversed with costs. Cause remanded, &e.