J. S. Hulse Hardware Co. v. American Express Co.

Opinion pee Curiam. This suit was brought by appellee to recover $150, which it had paid to appellant in September, 1893, on an alleged claim of loss of a bicycle delivered to appellee for shipment. A trial by jury resulted in a verdict and judgment for appellee for $150. There is but one mooted question involved, and that is one of fact. It is whether appellant did, as claimed, deliver to appellee, on or about November, 1892, for shipment, the bicycle in question. A large number of witnesses were examined. We can not in this opinion do more than recite the salient facts which we have gleaned from the very voluminous record filed. Late in October, 1892, W. A. Brolin left with appellant at Kockford, a Lozier bicycle, No. 311, which he had purchased from appellant, to be sent to Cleveland, Ohio, for repair. Appellant claims to have delivered the machine to appellee on November 1,1892. It had in its possession two receipts from the express company, one dated November 1st, for a wheel to be shipped to the Lozier company, and another, dated November 4th, for a wheel to be shipped to the same company. A wheel was received for shipment as above, and was accounted for; and appellee contends that the two receipts covered but one wheel, and that the reason that two receipts were executed is, that after the wheel was received, on November 1st, it was returned to appellant to be crated, and that when it came back to the express office, on November 4th, anew receipt was given for it without taking up the old one. We have reached the conclusion that appellee is correct in this contention, and that the Brolin bicycle was never received by it. We are satisfied by the evidence that after appellant had taken the bicycle from Brolin, it was sent to the Doubler Novelty Works at Rockford, for repairs. That it remained at the shops of the Doubler company until the dissolution of that company, and until the new firm of Dougherty & Shaw took possession of the shops, March, 1893; that it was sold by Shaw to one Taylor, in June, 1893; that Taylor subsequently sold it to Welty, and that it was discovered in his possession in February, 1894, when it was re7 plevied. The jury evidently took the same view of the facts that we have, and could of course do nothing short -of finding for appellee in the amount which it had paid under the erroneous impression that the bicycle was lost while in its possession for shipment. We do not care to discuss the errors claimed in the instructions. . The judgment is right and should stand. Judgment affirmed.