The action is to recover the price of nineteen, car loads of barrel staves sold and delivered by plaintiffs to defendant free on board cars.
*181The answer denies the sale of more than fifteen car loads, and sets up as counterclaims — First, an overpayment by mistake when paying for the fifteen car loads. Second, that plaintiffs shipped to it four car loads which it had not ordered, and that it paid the freight and other charges, notifying plaintiffs that it would try to dispose of the four car loads for them, if desired.
The communications between the parties were entirely by letters and telegrams. In respect to the number of car loads defendant ordered sent to it, the letters and telegrams are not so definite and precise as might be expected in business transactions. This, we think, was occasioned to some extent by delay of plaintiffs in making shipments of the car loads ordered. We suspect plaintiffs mistook for new orders what was intended as urging them to hurry the shipment of car loads already ordered, or as directing the destination of those already ordered. The court below was right in finding as a fact that only fifteen car loads were ordered by defendant, and it was also right in finding as a fact that defendant, through an error in calculating, made an overpayment on the fifteen car loads.
In respect to paying the freight and other charges on the four car loads, the defendant stands in the position of a volunteer. It could recover from plaintiffs the sums so paid only if paid at their request, express or implied, or if they subsequently ratified the payment as made in their behalf. There is no finding of any such request or ratification, or of any facts that would amount to such, nor would the evidence sustain any such finding. The facts are: The plaintiffs, claiming the four car loads had been ordered, when in truth they had not been, forwarded them to defendant, who, on their arrival, protesting that it had not ordered them, received them, paying the charges, and gave notice to plaintiffs that it would hold them subject to their order. The plaintiffs never consented that it should receive and hold the car loads for them, nor in any other way than as its own property. The case is different from a sale by sample or description, the goods to be forwarded to the purchaser, in which case there is implied authority to the purchaser to receive the goods so far as necessary for proper inspection, and to pay whatever transportation charges he may be required to pay in order to such receipt and inspection.
*182The court below will modify its direction for judgment by striking out the amount allowed for freight and other charges on the four car loads.
(Opinion published 60 N. W. 1097.)