Johnson v. Allen

Torrance, J. The principal questions in this ease depend for their solution upon the construction of that part of the agreement between the plaintiff and Norman C. Allen which relates to the furnishing of grain by the former to the latter. The plaintiff claims that when he furnished grain to Norman under the contract, the transaction was a sale ; that the grain became Norman’s upon delivery; and that thereupon, whatever subsequently became of the grain, Norman became liable for the price of the grain, to be determined and paid as provided for in the agreement. His complaint is based upon such a construction of the contract. It alleges that Norman “ had purchased grain of the plaintiff to the amount of $4,000,” and that $2,000 is now due to the plaintiff from Norman, “ for grain sold and delivered ” to him by the plaintiff under said agreement. We are of opinion that this is not the true construction. It is clearly inconsistent with some of the terms of the contract. By the contract the plaintiff is to “ buy grain for the party of the second part (i. e. Norman) to grind and sell” at the leased premises, to be delivered on the cars at the Montville depot; Norman is to pay for the grain the cost price at the depot, and one cent per bushel additional for each bushel bought; and Norman agrees to pay' the plaintiff “ once each month for the grain sold ” by him during the month immediately preceding. Up to this point it might perhaps fairly be claimed that the delivery of grain under the contract was intended to be a sale, although such a construction would not even then be free from doubt. But the contract goes on to provide as follows: “ And it is further understood that the party of the second part shall be responsible for all grain sold, shall collect all the bills for the same, and shall sell to whom he sees fit.” These provisions are clearly inconsistent with the claim that the grain became Norman’s when delivered under the contract. Norman agrees to pay only for what he sells, not for all that he re [744] ceives. He is expressly made responsible for the grain sold by him, and he is expressly empowered to sell it “ to whom he sees fit,” and expressly authorized and obligated to “ collect all the bills for the same.” If the grain became his upon delivery, these provisions are entirely unnecessary. We cannot, however, regard them as surplusage, nor ignore them. We must take the contract as a whole as we find it, and give effect if possible to all its terms; and we cannot do this if each delivery of grain under the contract is to be regarded as a sale. We are of opinion that the contract is essentially one that contemplates a bailment of the grain upon each delivery, and not a sale. We think its essential provisions should be construed as follows: The plaintiff is to buy grain and deliver it to Norman; it is to remain the property of the plaintiff, but Norman may grind it, and may sell it to whom he sees fit, and for such price, on such terms, in such quantities, and at such times as he sees fit; he is, so far as sales by him are concerned, to be responsible only for what he sells or disposes of, and that, too, only to the extent of the price per bushel fixed by the contract; if he sells at a profit the gain is his, if at a loss the loss is his; and he and not the plaintiff is to collect the bills for grain so sold by him. Under such a construction every delivery of grain to Norman was a bailment and not a sale. Norman agreed to pay, at the price fixed by the contract, only for such part of the grain bailed to him as he should sell or dispose of, and not for all that was bailed to him. This construction gives effect to all the terms of the contract and does violence to none of them. Under such a construction the defendant would be liable, not for the default of Norman in failing to pay for all grain delivered to him, but only for his default in paying for all grain sold or disposed of by him. This being, as we think, the true construction of the agreement, it follows that there could be no recovery by the plaintiff in this action upon the present complaint. That, as we have seen, is based upon an entirely different construction of the contract. It alleges [745] that the sum claimed is due from Norman for grain sold and delivered to him, and that Norman refuses to pay such sum; while at the same time it shows that the contract of guaranty sued upon covers no such default. Under the guaranty the defendant is not liable, so far as the grain is concerned, save for the default of Norman in paying for grain sold by him, and there is no allegation of any such default. The complaint is therefore fatally defective, for it shows upon its face that the default of Norman for which the plaintiff sought to recover, was not embraced within the contract of guaranty. In addition to this the court below has found in effect, that whatever grain Norman may have sold or disposed of, he has fully paid for. Upon the complaint and the evidence, then, the court reached the result that the plaintiff was not entitled to recover, and under the circumstances no other result was possible. This result was not and could not have been affected in any way by any of the rulings of which the plaintiff complains. Whether these rulings were right or wrong, they did not and could not affect the complaint, nor the contracts set up in it, nor the evidence, nor the finding that nothing was due from Norman for sales of grain; and these justify the judgment rendered, without reference to the effect of Exhibit B upon the contract of guaranty, or the question of counterclaim, or set-off, or anything else in the ease. The plaintiff’s case against the defendant is and must be predicated upon some default of Norman’s for which the defendant is responsible, embraced within the complaint, and the record fails to show any such default. It is upon this fact, and not upon the effect of Exhibit B, or any of the other questions in the case, that the judgment rests. In this view of the case it becomes unnecessary to consider at all the rulings of winch the plaintiff complains, for it is of no consequence here whether they were or were not erroneous ; and upon the question whether they were right or wrong we express no opinion. There is no error. In this opinion the other judges concurred.