Powers v. Dellinger

Lyow, J. Several alleged errors are assigned and are discussed in the briefs of counsel, but we find it necessary to consider but one of them. The principal question of fact litigated on the trial was, Did the defendant purchase the barrels in controversy of the plaintiff? This question seems to have been fairly submitted to the jury, and they have resolved it in the affirmative. Whatever our opinion may be of the weight of the testimony, there is sufficient testimony to support the verdict. It is a verity inj the case, therefore, made so by the verdict, that the defendant purchased the barrels theretofore stored by the plaintiff in the old mill. That being so, the defendant became the owner of the barrels, and they were at his risk. Hence, he became liable for the price of those-burned, immediately upon their being destroyed. But this rule does not apply to the 163 barrels saved from the fire. It satisfactorily appears by the plaintiff’s testimony that he took these into his own possession. He assisted in placing them in his building, and notified the defendant that they were there subject t,o hisorder. Hedid so without the consent or knowledge of the defendant, áxid it cannot be correctly said that the defendant [391] has used or disposed of these barrels'. Until he does so, or, at most, until a reasonable time for him to do so has elapsed, he is not liable for the price of them under the contract. No question of reasonable time is presented in the case. The instruction quoted in the above statement of the case does not discriminate between the barrels burned and those saved, in respect to the liability of the defendant. It submits to the jury the question of fact whether those saved, as well as those burned, were used or disposed of by the defendant, when there is no evidence that those saved were so used or disposed of. In this, we think, the learned judge of the municipal court erred. As the proofs stand, the plaintiff was not entitled to recover the price of the 163 barrels saved; yet he has recovered for these as well as for the others. For this reason the judgment of the municipal court must be reversed, and the cause remanded for a new trial. By the Court. — So ordered.