Leonard's Ex'ors v. Winslow

The opinion of the court was delivered J anuary 9, 1857, by Lewis, C. J. — The plaintiff in error has neglected to furnish us in his paper book, with “ the verdict of the jury, and judgment thereon,” as required by the first of the rules of court, adopted on the 6th of September, 1852. In the specifications of error, he has omitted to state the parts of the charge excepted to, as required by the seventh of the rules already mentioned. The assignments of error must therefore, according to the requirements of rule 8th, be “held the same as none.” But we perceive no error whatever in the charge, and we adopt it as containing a sound exposition of the law. On the first trial, there was no definition of the subject-matter sold, except the statement in a paper signed by the vendors, in which they stated that they “had sold 400 tons pig metal now at their landing at Washington Furnace, or that will soon be delivered there.” This was held to be insufiicient' of itself to pass title to 82 tons of pig metal, which had been previously shipped from the landing, and was, at the time of the sale, on its way down the river; but it was there intimated, in the opinion of this court, that other evidence might be given, which would show that these 82 tons were included in the sale. On the last trial, other evidence was accordingly given, tending to prove that the 82 tons were part of the 400 tons sold, and that the parties did not know at the time of the sale, that any of the iron had been shipped, and was on its way down the river. The witness who made the sale, states expressly that the part that was shipped was sold to the plaintiffs, as well as that at the landing, and that all parties supposed that the iron in question was still at the landing. This, and other evidence of like character, fully supplied the defects in the plaintiff’s title, which appeared on the first trial. Neither the court below nor the jury, had any doubt or hesitation on the subject. Their decision is in entire conformity to the views of this court, as expressed by Mr. Justice Lowrie, (12 Harris, 17.) But it is urged, that the parol evidence ought not to have been received, to contradict what is called the written bill of sale. To this it may be answered, that the instrument of writing is evidently not the contract of sale, but a paper prepared afterwards, for the purpose of furnishing directions to the vendors’ agents to “give possession,” and to “render all the aid they could in shipping the metal.” It does not express the terms of sale, was in,part made previously, and the terms are fully noted by the witness. In the second place, if the paper had been prepared as, and for a bill of sale, it is clear that all the parties were mis [150] taken in regard to the place where the 82 tons of pig iron were located, and it was unquestionably proper to correct that mistake. There is no error in the proceeding below. Judgment affirmed.