Hill v. Fruita Mercantile Co.

Mr. Justice Goddard delivered the opinion of the court: 1. Counsel for appellant contends that the court erred in denying his motion to strike the affidavit and bond in attachment from the files, for the reason that after the affidavit was sworn to and before the hearing on the motion, it had been altered. The alteration consisted in this: The affidavit, as originally drawn, contained the statement that the appellant was indebted to the appellee in a sum of money “not exceeding 200 dollars,” and that it now reads, “20 hundred”; in other words, that one of the ciphers has been erased. This contention is without merit, for several reasons: (1) There was no competent proof to show that the alteration occurred after the affidavit was sworn to; (2) The alteration was of an unnecessary, immaterial statement in the affidavit, to wit, that óf a jurisdictional fact. [496] The complaint averred that the amount claimed did not exceed $2,000. This was sufficient. The statement need not be repeated in the affidavit. Furthermore, the affidavit, even on its face, shows that the claim was for $414.18, which would satisfy the statute if it was necessary for the affidavit to contain such an allegation. — Barndollar v. Patton, 5 Colo. 46; Hughes v. Brewer, 7 Colo. 583. The further claim that the evidence introduced upon the hearing of the traverse was insufficient to sustain the ground of attachment, to wit, that the action was for the purchase price of goods that were to be paid upon delivery, is clearly untenable. As appears from the above statement, the appellant bought these potatoes at $1.25 ’per hundred, if shipped on the 20th of August. The offer was accepted, the potatoes were loaded and delivered to the common carrier according to this requirement. No time being fixed for payment, on its face it was a cash transaction, and the potatoes were to be paid for on delivery. It is well settled that, in the absence of a specific agreement concerning the terms of sale, goods sold áre to be paid for in cash on delivery. To change this presumption, the defendant must establish an agreement for credit. — Dolan v. Paradice, 4 Colo. App. 314; Metz v. Albrecht, 52 Ill. 491; Elder v. Hood, 38 Ill. 533; Dwyer v. Duquid, 70 Ill. 307. It follows, therefore, that there being no time fixed for payment, the purchase price was due when the potatoes were delivered. The attachment, therefore, was properly sustained, if the delivery to the common carrier on the day fixed by the contract was a delivery to appellant. The controlling question on this issue, as well as on the merits of the case, is, was the delivery of the potatoes to the common carrier a delivery to appellant? [497] The rule is well settled that, in the absence of any agreement to the contrary, delivery to the carrier is delivery to the consignee. — Elliott on Bail-roads, Vol. 4, § 414, and cases cited in note 60. And the converse of this rule is that, where the seller undertakes to deliver the goods himself at the buyer’s place of business and selects his own carrier, the carrier is usually regarded as the agent of the seller, who thus assumes the risk of carriage.— Ibid. In Angelí on Carriers, at § 497, it is said: “But by the delivery of the goods to a carrier on behalf of the consignee, and if they have been placed at his absolute disposal, and no other fact appears, the legal presumption is, that he is the true owner, and the property in the goods then becomes immediately vested in him; and, therefore, in the event of a loss, he, and not the consignor, must bring the action, for the consignor has his remedy against the purchaser.” As appears from' the statement of facts, the potatoes were sold to appellant on a telegram August 20, 1903, to be shipped that day. Appellee loaded them, and obtained bill of lading from the common carrier on that day, and notified appellant at once that the potatoes had been shipped, giving him the description of the car. From these undisputed facts, we think the case clearly comes within the general rule above stated, and that the delivery of the potatoes to the railroad company vested the title thereto in the appellant, and for any default on the part of the company in delivering the goods to him, a right of action arose in his favor, and not in favor of the appellee. 2. The complaint avers that the appellee is and was a corporation. The answer of appellant was insufficient to put this allegation in issue. [498] 3. The error assigned upon the refusal of the court to permit the witness' Silcox to testify that it was the custom in cases similar to this that the buyer had the privilege at all times to inspect the carload of potatoes before receiving them, and to reject them if they were not according to contract, is without merit, for the reason that the appellant did not base his objection to receive the potatoes upon this ground, but based it wholly on the ground of the failure of the railroad company to deliver them at as early a date as he expected, as evidenced by his letter of September 20, wherein he assigns this reason for not accepting the car of potatoes, and exonerates the appellee from all blame in the matter. Without noting in detail the other objections, suffice it to say that, upon a careful inspection of the record, we are satisfied that the court, in the trial of the cause, committed no error prejudicial to the rights of the appellant, and that, upon the undisputed facts, its conclusion as to the law was correct. Its judgment is, therefore, affirmed. Affirmed Chief Justice Steele and Mr. Justice Bailey concur.