Marsh v. Wickham & Wickham — 14 Johns. 167

Majority

p. 167

Marsh against Wickham and Wickham.

NEW-YORK,

May, 1817.

Headnote

The defendants having received a quantity nf leather from tie plaintiff, gate him a receipt these work: “ Received tie following vis £e~ which we agree to pay for at 'he following rale? one shilling le® duction to he made on e!.cli side of uftiier leather, flora the price above, and twoshillnge per pound f om the soal reatier, with the of re turning? any quantity of the said leather, which may on aand when a vgttle» merit is mrtle it was held, that this wa-i a svle to the and not a delivery tothem to sell on that parol evidence was ihdti inicióle to explain the transaction.

THIS was an action of assumpsit, tried before Mr. Justice Yates, at the Ontario circuit, in 1816.

The plaintiff declared on the following receipt:&emdash;16 Troupville, 13th January, 1813, from Mr. Samuel T. Marsh, the following leather, viz. sixteen sides upper leather,’’ (the num bers and prices of which are set forth,) “ twenty-four sides soal leather, three hundred forty-eight pounds and one half, which we agree to pay for at the following rate : one shilling to be made on each side of upper leather from the price above, and two shillings per pound for the soal leather with the privilege of returning any quantity of the said leather, which may remain on hand when the settlement is made. Wickham * Co.”

Amount of upper leather do soal leather 124 2 34 17 15 8 19

Subject to a deduction of Is. per side.’’

The defendants pleaded the general issue, and gave notice that they would give in evidence, on the trial, that the leather was left with them to be sold on account of the plaintiff, that they accounted for all that was sold, and paid the value to the plaintiff, and that the residue was burnt with the store

p. 168

of the defendants, by the enemy, during the late wav between Great Britain and the United Stales.

The execution of the receipt was proved, upon which there was the following endorsement, signed by the plaintiff: “ Received, Sodus, 5th July, 1813, from Wickham and Co. sixteen dollars and fifty cents, being the amount, by computation, of upper leather sold on the within account. The value of soal leather to be paid as soon as the quantity sold can be ascertained, and if it should appear that any greater quantity of upper leather had been sold than mentioned above, the difference to be settled as soon as ascertained.” The defendant offered to prove, that after giving the receipt, and before the endorsement thereon was made, the store of the defendants, with the leather, except what had been sold, was burnt by the enemies of the country, and that at the time of making the endorsement, the plaintiff agreed to accept payment of what had been actually sold of the leather, in discharge thereof. This evidence was objected to, and excluded by the judge, and the plaintiff having proved a demand of the leather, or of payment, the jury found a verdict for him, for the amount of the leather, deducting the sum mentioned in the endorsement on the receipt.

The defendants now moved for a new trial.

Woodworth, for the defendants,

contended, that they were bailees of the property specified in the receipt, and were not answer-* able for more than they had sold, or only for the proceeds not paid over; and that evidence offered to show that the property had been destroyed by the public enemy, was admissible. The notice was sufficient for that purpose ; and even if there had been no notice, the evidence was admissible under the general issue. The endorsement on the receipt explains the meaning of the parties, and shows that the leather was delivered to the defendants to sell for the plaintiff, on certain terms ; and that it was not a purchase by them.^[2] If there was any doubt arising on the face of the receipt, it must be removed by this endorsement.

Yelverton, contra,

insisted that there was an absolute sale of the leather to the defendants, subject to a certain deduction from the price, and with the privilege of returning what might remain in the hands of the defendants, when the parties came

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to a settlement of the account.^[2] The particular mode of paying the vendor cannot change the nature of the contract. Again: The endorsement of the receipt is evidence only that the plain tiff was willing to give a reasonable time for the payment, or the return of the leather. The rules of evidence are as strictly applicable in the case of a notice, as in that of a special plea ; and the evidence offered was not admissible.^[3] The notice sets forth no agreement on the part of the plaintiff to accept payment for what had been actually sold of the leather, in discharge of the contract.

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

p. 170

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.