Remer v. Goul

Brooke, C. J. (after stating the facts). We are of opinion that the learned trial judge was in error in declining to compel plaintiff to elect upon which count of his declaration he would go to the jury. The theories of the two counts were not consistent with each other, and it is obvious that, if the plaintiff acted in the transaction entirely as agent for the defendants in the disposal of their rye, his duties to them and their obligations to him would be measured by the rules of law covering the relationship of principal and agent. It is true that the real question for the determination of the jury was whether or not the defendants actually placed in the car 845 bushels of rye, as they claimed, but, assuming that they, either through mistake or fraud, did not ship the claimed amount to plaintiff, their rights as principals and the plaintiff’s duty as agent are fixed under legal principles entirely different from those which would have been applicable had the defendants been simply vendors and the plaintiff vendee of a stipulated number of bushels of rye. We think that the record fairly discloses the fact that the plaintiff did undertake and, in fact, did sell for the account of the defendants 845 bushels of rye, as their agent. This being the relation between the parties, it may be questioned whether, as such agent, the plaintiff had a legal right to adjust the claimed shortage with Wellman without the consent and against the protest of the defendants, and then look to them for payment. The court should have in [381] structed the jury as to the rights and obligations of the parties upon the theory, that plaintiff acted throughout the entire transaction as agent for the defendants. In excluding the record evidence of the weight of the contents of the car at Grand Rapids, we think the learned trial judge was plainly in error. See Meyer v. Brown, 130 Mich. 449 (90 N. W. 285), where a car weight record was held to have been properly admitted in evidence, although the testimony was received from the yardmaster, who testified from a book in which was copied the weights from the original card, which had theretofore been destroyed, and the entries in the book not having been made by the witness. The case is practically identical with the one at bar, except that Pickard testified from the original card, instead of a copy thereof. If this testimony had been admitted, and if the jury had been satisfied that the car was correctly weighed in Grand Rapids, it is clear that the 246 bushels either leaked out on the way to Buffalo, was stolen in the yards at Buffalo, or that the weights at destination were inaccurate. We are of opinion that the defendants clearly had the right to this testimony, and to argue, as a legitimate inference from its truthfulness, that they, at any rate, were not responsible for the shortage in the car. We have not overlooked the fact that plaintiff offered evidence tending to show that upon inspection in Buffalo the car showed no evidence of leakage, and that the inspector at that point found the seals unbroken. It is, however, we believe, true that the ingenuity of the dishonest has heretofore devised means of abstracting the contents of cars without disturbing the seals. The evidence adverted to was not conclusive upon defendants, but should receive' consideration from the jury, together with all the other testimony upon the [382] disputed question: “How much rye did defendants actually place in the car at Sand Lake?” For the errors pointed out, the judgment is reversed, and a new trial granted. McAlvay, Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.