Farnum v. Ramsey

Loring, J. This is an action of contract for the price of five tons of coal allegéd to have been sold by the plaintiff to the defendant. The defendant had a verdict and the case is here on exceptions taken to the refusal to give the four instructions printed on page 287 and on one exception taken to that part of" the charge of the presiding judge there set forth. The defendant was put on the witness stand by the plaintiff.' He testified “that he bought the coal of Sawyer and not of” the plaintiff; that Sawyer wanted the defendant to sell him a motor cycle and offered to* “give as the first payment five tons of coal, which he [Sawyer] said was his personal property;” that he (the defendant) “agreed to this and made out a conditional bill of sale of the motor cycle to Sawyer;” that “later” he “received from Sawyer” a bill on Farnum’s “regular bill head” in these words: “Uxbridge, Mass., Oct. 22,1915. . . . Sold to Mr. Howard Ramsey. 5 tons Lehigh Chestnut Coal at $8.50. . . . $42.50 (for later delivery). This amount is paid when applied as partial payment .on Indian motor cycle No. 79 F. 816. E. S. Farnum.” This was marked and will be referred to as exhibit I. The defendant further testified that the coal was delivered “in the latter part of October” by Sawyer; that he knew at the time that “Sawyer was employed by the plaintiff as the driver of a team by which coal was delivered.” In addition the defendant testified that “at some time later the plaintiff” asked him to change the lease of the motor cycle “from [289] Sawyer to him” and he refused to do so “until he []Sawyer3 broke the bargain” that Sawyer made with him. The plaintiff testified that Sawyer told him “that he, Sawyer, was anxious to have a motor cycle but could not get one as Ramsey would not trust him; that the plaintiff said that if Sawyer would stop drinking the plaintiff would buy the motor cycle and that Sawyer could use it and then buy it from the plaintiff, paying for it out of his, Sawyer’s, wages; that the plaintiff further, suggested that Ramsey would probably be willing to credit his winter’s supply of coal in part payment and directed Sawyer to go to Ramsey and see if the trade could be made; that later, Sawyer returned and reported that Ramsey was willing; that the bill signed as produced by Ramsey was then sent to Ramsey to be delivered by Sawyer.” There was no evidence connecting the defendant with the facts so testified to. The plaintiff further testified that “Sawyer broke his promise to stop drinking” and the plaintiff-told the defendant that the sale of the motor cycle “ should have been made to Qiim3 the plaintiff;” and told him that “he would have to be paid for the coal or have the lease of the motor cycle made to him which the defendant said he could not do because Sawyer had bought it and had not broken the lease.” Sawyer was not put upon the witness stand by either party. There is a short answer to the first ruling asked for and to the plaintiff’s complaint that the title to the motor cycle ought to have been taken in his (the plaintiff’s name) and not in Sawyer’s name. The short answer is that on the assumption on which the plaintiff proceeded it was immaterial whether the title was put by the defendant in Sawyer’s name or in the plaintiff’s name. The plaintiff went on the assumption that Sawyer acted as his agent in selling the coal and buying the motor cycle. If he did the title to the motor cycle was in the plaintiff as between the plaintiff and Sawyer although the defendant put the title in Sawyer’s name. Since Sawyer acted as the plaintiff’s agent any title taken in his agent’s name was his. There are other objections to this request for a ruling which are fatal. But it is not necessary to consider them. A short answer to the second, third and fourth rulings asked for is that the money due for the coal had been paid by being applied as partial payment on the motor cycle in accordance with the [290] terms of the bill for the coal delivered by Sawyer to the defendant if that is to be taken to be a bill for the sale of the coal by the plaintiff to the defendant. It is apparent from the pleadings and the terms of the bill of exceptions however that the case was not tried on the issue of payment. The defence set up at the trial was that the coal was bought by the defendant of Sawyer as Sawyer’s coal and for this reason that the defendant was not liable to the plaintiff as purchaser of the coal from him. In that aspect of the case also the second, third and fourth rulings asked for were rightly refused. In his argument here the plaintiff has relied on Orcutt v. Nelson, 1 Gray, 536, and similar cases in support of his contention that the facts set forth in the second, third and fourth requests are as matter of law decisive in his favor. The contention now put forward by him is this: The defendant must be taken to have bought the coal of the plaintiff as matter of law because (1) exhibit I was as matter of law notice to him that the plaintiff claimed to have sold the coal to him and'because (2) he used it after receiving that notice. But that contention is not set forth in these requests. There is no reference to exhibit I in any one of these requests. The second and third requests are based on the legal effect of using the coal after notice from the plaintiff that the coal was his and not Sawyer’s. And the fourth is based on the effect of using the coal under circumstances that ought to have led him to suspect that it was the plaintiff’s coal and not Sawyer’s. These facts might have had a bearing upon the defendant’s liability if the plaintiff had sued him in tort for conversion of the coal. But they were not decisive (if indeed they had any bearing as matter of law) upon the issue then on trial, namely, Did the defendánt buy the coal from the plaintiff and not from Sawyer? We do not intimate that the contention now made by the plaintiff but not set forth in his request for rulings was correct. The part of the charge to which the plaintiff took an exception is obscure. For all that appears this part may have been made plain by the rest of the charge. The rest of the charge is not set forth in the bill of exceptions. The burden is on the excepting party to show error. Under these circumstances the plaintiff has not sustained that burden. Exceptions overruled.