Luthy & Co. v. L. Waterbury & Co.

Per Curiam: The principal part of the argument of counsel for appellants is devoted to a discussion of controverted questions of fact; but as we do not pass upon those questions, it will not be necessary to consider that portion of the argument. No question has been raised in regard to the ruling of the-court on the admission or exclusion of evidence. The only remaining question, therefore, for our consideration is, whether the court erred in its instructions to the jury. The court, in instructions Nos. 5 and 6, given for the plaintiffs, in substance directed the jury, that by the contract between the parties, plaintiffs guaranteed the twine sold to be" in good condition and a merchantable article, and that the guaranty, had reference to the condition and quality of the twine at the time the contract was made. It is plain that by the terms of the contract the possession of the twine would not pass to appellants until such time as the warehouse receipts should be delivered over to them, and the question is not free from doubt whether, under the contract, the guaranty related to the condition of the twine at the date of the contract, or at the date the possession of the property should pass into the hands of appellants by the delivery to them of the warehouse receipts. We are, however, in view of all the provisions of the contract, inclined to the view that the court placed the proper construction upon it. If the sale was complete, and the title to the twine passed on the execution of the contract as between the parties, then the guaranty related to, the date of the contract. In a contract of sale the title will pass if such is the intention of the parties, although measuring or weighing is to be had at a subsequent time, in order to ascertain the amount to be paid. (Straus v. Minzesheimer, 78 Ill. 493.) Here, the number of pounds of twine was stated, the price fixed, and the location of the property specified. Nothing remained to be done to place defendants in full possession of the property sold, except to pass over the warehouse receipts. From the different provisions of the contract we think the parties intended that the title should pass when they executed the contract. The language of the guaranty itself would also seem to favor the construction placed upon it by the court. It is as follows : “Party of the first part hereby guarantee that this twine is in good condition and a merchantable article. ” When ? Obviously at the date of the agreement. But even if the court was in error in the construction placed upon the guaranty, all the evidence offered to show the condition of the twine two months after the contract was executed was allowed to go to the jury, for the purpose of showing the condition of the twine when the contract was made, and as the jury had all the evidence before them, it is difficult to see in what manner the defendants’ rights were prejudiced by the instructions. If an error was committed, it was one that did no harm, and can not be relied upon to reverse the judgment. It is also claimed that the court‘erred in giving the plaintiffs’ fourth instruction, as follows: “The jury are further instructed, that they are not at liberty, under the law, to take into consideration, in fixing the prices at which the National Cordage Company or the plaintiffs sold binder twine during the season of 1889, any fact or circumstance which did not enter into or affect the market value of such twine, in comparison with the jDrices named in the contract between plaintiffs and defendants. The jury are therefore instructed to pay no regard to the claim made by the plaintiffs that there was an advantage accruing to the purchaser by reason of there being a provision in bis contract whereby he was accorded the privilege of returning to the seller all twine remaining unsold at the end of the season, unless the jury believe, from the evidence, that such privilege of returning affected the market value of- twine sold with such privilege.” It was claimed by the defendants that they were entitled to a deduction on the price of twine, on the ground that plaintiffs had sold twine at less prices during the season, and under a provision in the contract they were entitled to a corresponding reduction. The provision of the contract relied upon is, that “should the National Cordage Company or the party of the first part (appellees) sell twine during the season at less prices than the above, they will make a corresponding reduction on this twine.” Evidence was introduced tending to show sales of twine by the National Cordage Company for a less price, and also that in one instance, at least, a contract was made whereby the purchaser had the right, at the end of the season, to return all twine unsold, and it was claimed by the defendants that the right of return was a reduction in the price, which would inure to the benefit of defendants under their contract. Under the contract, if the National Cordage Company or the plaintiffs should sell twine for a less price than defendants had agreed to pay, then defendants were to have a reduction in the price they were to pay. But the fact that one or more parties had the privilege of returning twine at the end of the season would not, of itself, in the absence of other proof, show that the price had been reduced. Whether the privilege of returning was an element which would reduce the price, was a question to be .determined by the jury from all the evidence, and we think the jury were properly instructed to disregard the fact that a purchaser had the privilege of returning twine at the end of the season, unless such privilege affected the market value of the twine. If the right to return did not produce a reduction in the price of the article on the market, it could have no effect on the contract of defendants or their rights. The defendants’ fourth instruction was modified to make it conform to instruction No. 4, given for the plaintiffs, by adding, “if the jury believe, from the evidence, that such privilege of return affected the market value of the twine.” From what was said in regard to the fourth instruction, if we are correct, it follows that the modification was -right. The judgment of the Appellate Court will he affirmed. Judgment affirmed.