Pease v. Copp

By the Court, Marvin, J.

The action was brought to recover a balance claimed to be owing and due to the plaintiff for cheese sold at a price stipulated, and delivered in 1857.

There are exceptions to the findings of facts by the referee. I have carefully read the evidence. There was evidence tending to prove all the material facts found by the referee, and there was evidence upon some of the issues tending to prove the contrary. The findings are not so against evidence as to justify the court in interfering. The conclusion of law from the facts found was correct. This brings us to the exceptions taken during the trial to the admission and rejection of evidence.

The contract as claimed by the plaintiff was a sale of the plaintiff’s cheese then made, and all to be made by the 20th of October following, and to be delivered after the cheese was a month old, at Dunkirk. The defendant claimed that the contract only included the cheese made up to the first of October. The contract price was nine cents a pound. The plaintiff quit making cheese the 10th or 12th of October. He delivered the cheese made up to that time at the warehouse of Abell in Dunkirk, and to Abell, who was an agent of defendant for receiving cheese. The last delivery was Hov. 27, 1857,— 33 boxes, 3,087 pounds. The value of this, at the contract price, was $277.88. The plaintiff had previously delivered 8,157 pounds ; this had been paid for, and also $100, as the plaintiff conceded, on account of the 3,087 pounds of cheese, before this action commenced, leaving as the plaintiff claimed $177.83 still due. The action was commenced in December, 1858. The defendant claimed that he had paid the plaintiff in full, or rather that he had settled with the plaintiff matters in dispute between them growing, out of the contract and its performance, and had paid him in full under circumstances that would amount to an accord and satisfaction.

The evidence upon this question was heard, and the referee found against the positions of the defendant.

The cheese was delivered by the plaintiff to Abell at his warehouse in Dunkirk and shipped by him to the commission agents of the defendant in Hew York, for sale. The cheese was in boxes. It does not appear that the cheese was examined, either by the defendant or Abell, at the time it was delivered to Abell, or before it was shipped to ¡New York.

The defendant saw the cheese that was made and in the dairy in August, about the time he made the contract to purchase.

The defendant then offered to prove that the cheese in question was not of a merchantable quality, and that it was not made during the time mentioned in the contract. Such proof was objected to, and the evidence was excluded, and the defendant excepted.

The defendant also offered to prove what was said in a conversation between the plaintiff and defendant, in August, 1858, respecting the quality of the cheese. Objection was made ; the referee received the evidence with the understanding that he should, before making a final decision of the cause, decide whether it was admissible ; that the party against whom the question was decided might except. The referee finally sustained the objection, and the defendant excepted. The evidence then given conditionally was: The plaintiff said the cheese was not cured as it should be [should have been], he was sorry it was not cured more. The defendant claimed [in the conversation] that all the thirty-three boxes were made after the contract expired [meaning Oct. 1st]; he said he thought not more than one-half of them.

The defendant also offered to prove what constituted Mr. Abell’s agency, and how far it extended in receiving the cheese. This was objected to and disposed of the same manner as the objections above. The evidence taken and finally rejected, was from the defendant: “I employed him to receive, weigh and forward cheese to its destination. His authority was merely to receive such cheese as I sent to him.”

The defendant, in substance, offered to prove that the defendant got information from ¡NewYork that the cheese was not merchantable and could not be sold ; that it was not cured; that such information was received in December, 1857. The evidence was, upon objection, rejected,' and the defendant excepted.

The defendant offered to prove that he communicated to the plaintiff that the cheese was not good, and that the plaintiff said, “ go on and pay the note and plaintiff would do what was right about the cheesethat the parties were talking about the price of the cheese. Excluded, upon obj ection, and the defendant excepted. There were several other offers of evidence to show the agency of the consignee in Hew York; the character of the cheese, as to quality, made late in the fall; the value of cheese made after October 1st. The evidence was rejected, and the defendant excepted. It is not-necessary to state the case further. The referee reports in favor of the plaintiff for the value of all the cheese delivered at Abell’s and forwarded to Hew York, at the contract price. The counsel for the defendant makes the point that the referee erred in finding that there was any acceptance of and liability for the cheese in question by the defendant at the contract price, and insists upon the exceptions. Also in finding that the plaintiff was not fully paid, &c.

The referee found that by the contract the cheese was to be delivered in Dunkirk at the warehouse of Abell. That Abell was a forwarding merchant and the agent of the defendant to receive the delivery of the cheese; that the plaintiff delivered the cheese, and Abell received it. These facts being so, the referee, in rejecting the evidence of the quality of the cheese, held that such evidence, in the absence of fraud, could not affect the plaintiff’s right to recover. The contract was executory. The cheese was delivered at the place desigated by the contract, and there was a man there who received it. I do not think it very material to ascertain what precise authority Abell had from the defendant touching any inspection of the cheese; he had authority, as all the evidence shows, to receive the cheese, weigh and forward it — such cheese as the defendant sent to him. This is from the evidence of the defendant which the referee finally-excluded. I refer to it as showing that Abell’s authority was sufficient, as the defendant states it; and rejecting this evidence could not change the case. It is true that the defendant says Abell’s authority was merely to receive such cheese as he sent to him. By the contract the cheese was to be delivered at the warehouse of Abell, and it was the duty of the defendant to be there in person to receive it, or have an agent there for that purpose. The defendant was a large purchaser of cheese to be delivered at Abell’s warehouse. He did not attend there in person, but Abell received cheese brought there, and forwarded it. In this case he received the cheese and sent it to Hew York to the agents of the defendant, for sale. I have no doubt, within all the authorities, that it must be held that there was a delivery and acceptance of the cheese. It was an article that could be inspected, and its quality ascertained, and this should have been done at Abell’s warehouse. The defendant had no right himself or by his agent to take the plaintiff’s cheese and send it to Hew York, and then on finding that it was not of the quality the contract called for, take the position that there had been no delivery,' or that the title had not passed. In this case there was no proof that the defendant ever offered to return the cheese. But I have no doubt he must be held to have accepted it when it was delivered at the place specified in the contract and there received by Abell, his agent, and forwarded to Hew York. It was then too late to raise any question as to its quality, as it was an article that could have been readily inspected and its quality ascertained.

[Erie General Term, February, 1860.

The judgment must be affirmed.

Judgment affirmed.

Greene, Marvin and Dams, Justices.]