Green v. Feil

Cole, J. The court below seems to have properly directed the jury, to meet the evidence on either side. The plaintiff insisted that he was acting as an agent merely in buying the turtle for the defendant, and that he assumed no personal liability in the matter. His evidence tended to sustain, that view. And to meet that case the court told the jury, t¿at if they found from the evidence that the plaintiff acted as agent for the defendant in ordering the turtle from Hew York, and if the turtle was shipped in good order, was injured before it [623] arrived at Milwaukee, witliout fault of the plaintiff, but the injury was not known to the plaintiff when the turtle was left by the carrier, then under no circumstances was the plaintiff liable for such injury, and, having paid therefor after its reception before knowledge of the injury, he was entitled to recover the amount paid of the defendant. "We do not see that the defendant has any jnst ground to complain of this charge. There is nothing to show that the plaintiff did not act with proper diligence and care in the execution of his agency. It is true, he testified that he paid for the turtle after he had notice from the defendant that he did not want it. But it appears the turtle was purchased on his own credit, and the uncontradicted testimony shows that the turtle was healthy and strong, and in good condition, when shipped at ETew York, and that it is the custom of the trade for buyers to take the risk of turtles shipped to them; Under those circumstances, we do not see how the plaintiff could avoid paying for the turtle. The vendor of the turtle had the right to look to him for his pay, there being nothing to show that he was acting for another party. And if the plaintiff was acting as agent in the matter, upon what ground can it be claimed that he was responsible for an injury to the turtle while in transit? But the defendant insisted that the plaintiff undertook to furnish, sell and deliver to him at Milwaukee a live salt-water turtle, which might be kept alive on - exhibition two or three weeks at his restaurant, and then served up in the usual way to his customers; and that the turtle delivered was in a sick and dying condition, and wholly unfit for the purpose for which it was ordered. The court charged that if this was the contract, then the plaintiff was bound to furnish him with a healthy turtle, and if the one delivered was not sound, the plaintiff was not entitled to recover in the action. The court added in this connection, that if the defendant was put to any expense on account of the turtle, “ he would be entitled to re [624] coup it against the plaintiff.” It is said, if the plaintiff was not entitled to recover in the action, there could he no recoupment; and this is so. But this inaccuracy in the expression could not possibly have injured the defendant. It is unnecessary to observe that we cannot go into an examination of the testimony to determine whether the verdict accords with the weight of evidence. There is ample evidence to support the finding of the jury; and the verdict is conclusive upon the questions of fact. By the Gowrt.— The judgment of the county court is affirmed.