Barnett & Co. v. Terry & Smith

Lochrane, C. J. This was an action brought to recover money alleged to be due on an open account. When the case came up for trial the defendant pleaded, among other things, that the contract relative to the item of flour, which formed the matter in controversy, had been rescinded before the commencement of the suit, and also a plea setting up tender of a certain amount in payment. The Court struck out these pleas, the one on the ground that the plea did not allege a return of the flour, or offer to return it, and the other on the ground that the money alleged to be due and tendered, was not in Court ready to be deposited. The case proceeded to the jury, and evidence was submitted by plaintiff, when the defendant moved a non-suit, which the Court overruled. Then defendant offered in evidence the answers of Myers to a set of interrogatories, which were stricken out by the Court; and these rulings, together with the Judge’s charges and refusal to charge form the basis of assignment in error upon which the case comes before this Court. 1. The practice of our Courts is based on no technical theories, and when the cause of action or of defense is substantially stated — plainly, clearly and distinctly set forth— objections to form are not favored. But in the plea of recision of contract, we are of opinion that it is not sufficient to simply set out the fact asa legal result; but the opposite party is entitled to be put in the possession of the circumstances relied on to establish it. If in writing, it should be set out; and if arising from evidence, sufficient clearness of statement of the points relied on ought to be averred. [288] 2. In relation to the plea of tender. The inquiry made by the Court was one within his discretionary power. "When tender is set up in bar of an action pending, the Court may call on the party tendering to pay the money into Court. It is an admission of so much money due, and if the party relies on it as a plea to release him from interest, it is not error to call upon him to comply with his offer, for the plea sets up he is then and has always been ready to pay that sum admitted to be due. If he desires advantage from it he must be ready to. perform when called on by the Court. 3. We go on, however, to the more important question of this case. Non-suit will not be granted when there is slight evidence to go to the jury. In this case, we find by reference to the evidence, that there was sufficient to have carried the case to the jury, and there was no error in overruling the motion for non-suit. 4. But we are of opinion that the Court erred in rejecting the testimony of Myers, offered by the defendants. It appears that Terry & Smith sent a lot of flour to Barnett & Company, which flour was not according to the order of the parties; and when received, Barnett & Company at once notified Terry & Smith that they held the flour subject to their order. They then sent an agent to Columbus to take charge of "the flour, who sold some part of it, when Barnett & Company set up their claim to freight paid out and storage expenses upon the flour. It is also in evidence that they set up claim for some damage which they held against the parties on a former shipment of flour. The agent of Terry & Smith refused to take the flour and pay these demands; and Myers’ evidence, rejected, was to the effect that he had sold the flour and gave account sales and amounts. The Judge charged in effect against the right of Barnett & Company to set up their claim for freight and expenses on this flour. The rule of law governing eases of this character, we lay down to be this: Where a commission merchant ships pro [289] duee to another, who receives the same, paying freight and expenses thereon, and on examination it is found that the articles are not in kind or in quality what were ordered, and. he at once gives notice to the shipper of this fact and that lie holds subject to his order, in such case the act of receiving is not such a performance as makes the contract valid and binding on him; and the party shipping is bound for all freight and expense paid out in the premises; and the consignee has a- lien on the property to this effect. And in case the party does not come forward and pay such freight and expense, and the consignee, in good faith, and when the property is of such a character as would deteriorate by length of storage, has some sold, his action in the premises is proper evidence to go to the jury, to be submitted with all the facts of the case, and to be considered by them in ascertaining the amount of verdict they should find. The value of the property being the main issue in such case, the price it sold at, if sold in good faith, is competent evidence to go to the jury, to show that fact, not conclusive but competent and pertinent testimony. Judgment reversed, on the ground that the Court erred in rejecting Myers’ evidence in this case.