Sawyer v. Chicago & Northwestern Railway Co.

Dixon, C. J. Mr. "Watson, the receiving and shipping clerk of the defendant, the railway company, knew that the flour belonged to the plaintiff. He knew it because he knew it came from the plaintiff’s mill, and that the teamster who hauled it was the same who had previously hauled flour for the plaintiff. He himself testified to these facts. He also testified that his only authority for delivering the bill of lading to Mr. Tilton was, that the teamster “ said that the flour was for Mr. Tilton.” This was clearly no authority for delivering the flour to Mr. Tilton; and. such delivery was a conversion by the railway company. . In the first place, the teamster was not the agent of. the plaintiff for any such purpose. He was a mere servant, having possession of the flour for the purpose of delivering it to the railway company, and nothing more. He had no power or semblance of power, by virtue of his employment, to direct the delivery of the flour by the railway company to Mr. Tilton or any one else. The agents and servants of the railway company were bound to know this, and to govern themselves accordingly. See authorities cited by counsel for plaintiff to this point. Special authority from the plaintiff to the teamster for that purpose was not shown, nor attempted to be. In the second place, the statement of the teamster that the flour was for Mr. Tilton did not justify the inference, either that it then belonged to Mr. Tilton or that he was entitled to the possession of it. It was no more than saying that it was intended for him, which was true, but which could not have been understood as implying that it was to be delivered by the railroad company to him without further and specific instructions to that effect from the plaintiff, who was the real owner. Upon these facts alone, which are clear and undisputed, I do not see how the jury could have found otherwise than [410] tbat tbe delivery to Mr. Tilton was wholly unauthorized; and that without regard to any evidence of the supposed custom prevailing among business men in transactions of this nature. If there was no custom, and no evidence tending to establish it, the verdict must have been the very same. I do not therefore consider it necessary to examine any of the exceptions or alleged errors arising out of that part of the case. They become immaterial, and cannot affect the judgment. The next question, and that about which we have had most difficulty, arises out of the subsequent delivery by the plaintiff to Mr. Tilton of the other two hundred barrels of flour mentioned in the agreement. He delivered and received pay for them. Was such delivery and receipt of payment a waiver of the condition of payment down for the first hundred barrels according to the agreement ? Hid the plaintiff thereby ratify the entire agreement, so that he could not afterwards rescind as to the one hundred barrels of which Mr. Tilton had thus obtained wrongful possession ? Laying aside all questions under the statute of frauds, and considering the agreement in every respect as valid as if it had been reduced to writing and subscribed by the parties, I yet think that the plaintiff waived none of his legal rights arising out of the wrongful delivery or taking of the first one hundred barrels. I think so because I think the agreement was divisible. It was for the sale of three hundred barrels of flour at $8 per barrel, to be delivered in lots of one hundred barrels each, each lot to be paid for on delivery. It was in legal effect the same as if there had been ..three contracts for the sale and delivery of one hundred barrels of flour each. The delivery of the flour and receipt of the price under one contract was not a waiver of any rights which had accrued in consequence of the non-performance of another. “ Any contract,” says Mr. PARSONS, [411] “ may consist of many parts; and these may be considered as parts of one whole, or as so many distinct contracts, entered into at one time, and expressed in the same instrument, but not thereby made one contract. * * * If the part to be performed by, one party consists of several distinct and separate items, and the price to be paid by the other is apportioned to each item to be performed, or is left to be implied by law, such contract- will generally be held to be severable.” See 2 Parsons on Contracts (5th ed.), p. 517, and cases cited in note (b), especially Johnson v. Johnson, 3 B. & P., 162, and Robinson v. Green, 3 Met., 159. See also Goodwin v. Merrill, 13 Wis., 659. The only remaining question necessary to be considered is as to the eighth instruction given by the court to the jury.- That instruction was to the effect that the subsequent receipt by the plaintiff from Mr. Tilton of $50 on account of the flour wrongfully delivered, if the jury should so find, would constitute no release or waiver of the plaintiff’s right of action against the defendant. The correctness of this instruction is very questionable; but whether it is correct or not is not a matter which need now be considered. It has become speculative and immaterial by the finding of the jury. The jury returned a verdict for the plaintiff' for the value or price of the flour, with interest from the time of conversion, and thus must have found that the $50 was received by the plaintiff not in part payment for this flour, but upon a pre-existing debt due from Tilton to him. The verdict in this respect is sustained by evidence, and was found under a proper instruction given by the court upon that point. Hence the defendant is not aggrieved by the instruction, conceding it to have been erroneous, and the judgment will not on that account be reversed. Lawler v. Earle, 5 Allen, 22; Powers v. Sawyer, [412] 46 Me., 160; Johnston v. Jones, 1 Black, 209, 222; Ramsey and Jenkins v. Gloss, 9 Gill, 56. By the Court. — Judgment affirmed.