Bosworth v. Frankberger

Caton, J. This action was brought for the value of a pair of truck wheels. One Chilson swore that he, as the agent of Bosworth, made a contract with the plaintiff below, in January, 1853, for the wheels which were not then finished, for which the defendant was to give the plaintiff a certain coolc-stove which was then in defendant’s possession. That the plaintiff was to finish the wheels and have them ready for delivery in two or three weeks, when the plaintiff said he would want the stove, which would be ready for him then. Nothing was said as to the place of delivery of the wheels or the stove. The defendant’s agent called for and obtained the wheels at the time agreed upon, when the plaintiff asked why he did not bring the stove; when the agent replied, that it was too rough to bring it, but said he would probably bring it over some time when he came that way. Before he obtained the wheels the defendant had set the stove out for the plaintiff, where it remained for a considerable time, till the defendant was about to move away, when he carried it to the plaintiff, who refused to receive it. This was in May, and the stove had become rusted by the weather. The plaintiff had not in the mean time sent for the stove. It was admitted that the wheels were worth fourteen dollars. The court instructed the jury, that on the above state of facts the plaintiff was entitled to recover, and that no demand was necessary for the stove, but that it was the duty of the defendant to deliver the stove when he got the wheels, and that if he did not do it within a reasonable time, the plaintiff was entitled to consider the special contract as rescinded, and to sue for the price of the wheels. We think the questions ^should have been left to the jury, which, in these instructions, the court assumed to decide for them. The agreement of sale or exchange in this case was by parol, and did not by its terms, so far as we learn from-the testimony of the witness, specify the place of delivery of the article sold or exchanged. It was for the jury to determine what were the terms of the agreement, and if found to be as this witness testified, the place of delivery must depend upon extrinsic circumstances. If the plaintiff was a wheelwright and manufactured such articles for sale, and the defendant ordered or purchased of him the wheels and agreed, to pay in a stove, especially as the defendant was not a manufacturer of or dealer in stoves, there is no doubt that it was the duty of the defendant to call at the plaintiff’s shop for the wheels and there to pay for them by the delivery of the stove, while, if neither was a manufacturer of, or dealer in,the article disposed of, but each happened to have or expected to have the article on hand, and they agreed to exchange the articles the one for the other, the place of delivery of each article was where it happened to be at the time of the exchange. 2 Greenl. Evid. §§ 609, 610; Bronson v. Gleason, 7 Barb. S. C. R. 472. Where the intent of the parties or the place of delivery is to be determined by extraneous circumstances, those circumstances must be proved, and it is for the jury to determine what contract the proof does establish ; and what was the intent of the parties as indicated by the surrounding circumstances, being, of course, governed in their finding of these facts by the rules of law to be given them by the court. Although we might, in this instance, agree with the circuit court in the opinion that this evidence shows a purchase of the wheels by the defendant, of the plaintiff, to be paid for in a stove, and that it was the intention and understanding of the parties, that the defendant should take the stove to the plaintiff"; still we think the court should have left it to the jury to say what the contract was which, the proof did show, and what was the intention of the parties as indicated by the surrounding circumstances, simply laying down the rules of law by which they should be governed in determining those questions of fact. The judgment of the circuit court must be reversed, and the cause remanded. Judgment reversed,.