Outcault Advertising Co. v. Brooks

Opinion by Mr. Chief Justice Moore. 1. The question to be considered is whether or not the findings of fact support the conclusion of law predicated thereon. This inquiry necessarily depends upon a determination as to whether or not a delivery of the goods to a common carrier selected by the plaintiff was equivalent to a transfer of the possession from. [437] it to the defendants. As the writing, signed by the defendants, expressly stipulated that they were to hold the type and cuts subject to the plaintiff’s order, it conclusively appears from the memorandum that a redelivery of the goods was contemplated by the parties. It will thus be seen that the written order, when accepted by the plaintiff as found by the court, consummated a contract by which the possession of specific articles of personal property was undertaken temporarily to be transferred from the owner to others for the accomplishment of a special purpose, and hence the agreement was a bailment: Elliott, Contracts, §2985; State v. You, 20 Or. 215 (25 Pac. 355). At Section 3072 of his valuable work on Contracts, Judge Elliott says: “The contract is merely executory until delivery by the bailor to the bailee and acceptance by the latter, when the bailment relationship commences.” “The property, the subject of the bailment,” says another writer, “must come to the possession of the bailee; and to that end there must be some sort of delivery, actual or constructive”: Van Zile, Bail. & Car. (2 ed.), § 18. In the next section this author further remarks: “The delivery must be such in every case as will give the bailee absolute and complete control of the property bailed.” To the same effect, see, also, Schouler, Bail. & Car. (3 ed.), § 132. 2. Delivery is the essential element of a bailment, which trust relation begins when the possession of the personal property is transferred to the bailee: Dobie, Bail. & Car., § 10. Mr. Mechem in his work on Sales (Volume 2, Section 1181), in discussing the undertaking of a seller to “send,” “ship” or “forward” goods, and the manner of satisfying such obligation, says: [438] “It is obvious that the agreement of the seller or the direction of the buyer to send the goods to the latter may have a variety of meanings, including even an actual transportation and delivery by the seller to the buyer at the point of destination as a condition precedent to the passing of the title. In the ordinary case, however, where specific goods are sold at one place which the buyer desires to have delivered at another, and the seller expressly or impliedly agrees, or the buyer directs him, to send them to that place, without specifying the means or method, this agreement or direction is satisfied when the seller has delivered the goods to a common carrier consigned to the buyer at the place specified.” To the same effect, see Benjamin on Sales (2 Am. ed.),§§181, 693; 24 Am. & Eng. Ency. Law (2 ed.), 1071; 35 Cyc. 193; Woodbine Children’s Clothing Co. v. Goldnamer, 134 Ky. 538 (121 S. W. 444, 20 Ann. Cas. 1026); Gibson v. Inman Packet Company, 111 Ark. 521 (164 S. W. 280, Ann. Cas. 1916A, 1043). 3. In Herring-Marvin Co. v. Smith, 43 Or. 315 (72 Pac. 704, 73 Pac. 340), it was determined that a contract of conditional sale, providing for shipment by the vendor at a distant point “via best route,” stipulating for safe delivery on cars at the city where the purchaser lived, at which time he would repay the vendor the freight bill, was a contract to deliver to the buyer at the place where he lived, and a delivery to the carrier for shipment was not a delivery to the buyer. In that case the part of the written order that is deemed material reads: “Please ship as directed one number 185 safe * * marked to James R. Smith, town of La Grande, county of Union, and State of Oregon, via best route, for which I agree to pay to your order the sum of $321.00 gold coin, rent as follows: Fgt. on arrival, and balance in six equal payments of 30 days each, to date from arrival of safe in La Grande, or 5 per cent said balance [439] in 30 days from arrival, for safe delivery on cars at La Grande, Oregon.” In rendering that decision Mr. Justice Wolverton quotes from Benjamin on Sales (2 ed.), Section 693, to the effect that a delivery to a common carrier, pursuant to a purchaser’s order to “ship” the goods requested, was a surrender of the possession to an agent of the purchaser, but that a stipulation for safe delivery on cars at place of destination took the case out of that rule. There is no great distinction between a conditional .sale and a bailment: Mechem, Sales, § 582. In Outcault Advertising Co. v. Buell, 71 Or. 52 (141 Pac. 1020), under a written request similar to that herein, it was held that when one, ordering advertising matter, wrote to the bailor, stating he could not arrange with his local paper for satisfactory advertising space within reasonable terms, and requesting that the material ordered should not be forwarded till he felt in better condition to handle it, the letter did not constitute a sufficient revocation of the order, even if the bailee had a right to rescind. In that case a part of the material ordered had been sent by express, and the charges therefor paid by the bailee. This re-, ceipt and payment amounted at least to a partial delivery and acceptance of the goods ordered. It will be remembered that the written order contained the clause, “Ship us at our expense” the goods requested. The words last quoted authorized the plaintiff to select as the defendants’ agent the common carrier so chosen. The bailor having thus complied with all the terms of the contract and delivered the goods to the defendants before they countermanded the order, they are liable thereunder for the sum of money which they agreed to pay for the use of the advertising matter. [440] The findings of fact do not support the conclusion of law based thereon; and, such being the case, the judgment is reversed, and the cause will be remanded, with directions to render a judgment in favor of the plaintiff .and against the defendants for the sum of $109.20. Reversed. Mr. Justice Bean, Mr. Justice Burnett and Mr. Justice Harris concur.