Wesling v. Noonan

Fisher, J., delivered the opinion of the court. This ivas an action of replevin, tried in the Circuit Court of Yazoo county. A verdict and judgment being rendered for the plaintiff below, the defendant moved for a new trial, which motion being overruled, the defendant excepted. The question for decision is, whether the court erred in refusing to grant a new trial. The facts, as shown by the bill of exceptions, are as follows:— The property in question, consisting of a lot of cooking-stoves, castings, &c., were shipped by one Jones, of Massachusetts, to William B. Andrews, of Canton, in this State, to be sold by him, as the agent of Jones. While the property was in the hands of the defendant below, as a commission merchant, in Yazoo city, it was sold by Andrews to the plaintiff. The defendant refused to deliver the property on demand of the plaintiff, on the ground that Andrews was indebted to the defendant, not only on account of the freight paid by defendant, and for storage, &c., but also on account of previous shipments. The plaintiff offered to pay the charges on account of the property purchased; but refused to pay the other charges against Andrews, on account of previous transactions; which proposition was rejected by the defendant. It is insisted by the counsel for the plaintiff in error, who was the defendant below, that he had a lien upon the articles, not only for the freight and other charges, on account of the same, but for any general balance due by Andrews, growing out of similar transactions. It is not required of us, under the facts of this case, to decide the point as it is presented by .counsel. It may be admitted, for the sake of the argument, that the lien for any general balance, would attach to any property of Andrews in the hands of his merchant. But the property, in this instance, did not belong to Andrews, and he had no right to use it in payment of his debts. He was but the agent of the owner, and in that character alone could deal writh the property, which had only been consigned to. him to sell, and not in virtue of his orders to purchase it. [603] It is next said, that the court erred in admitting the deposition of Jones, the owner of the property, when it was consigned to Andrews, to he read to the jury. The objection to the reading of the deposition was general, not specifying the particular objection. It may he true, that the witness was incompetent, but the record must show affirmatively, that the deposition was objected to on this ground; for the obvious reason that the plaintiff might have supplied the defect by either releasing the witness, or by introducing other testimony. The objection, as to the power of attorney and hill of sale, need not be noticed, as the proof of sale was ample, without either instrument ; and neither was necessary to confer title. It is next urged that the plaintiff, at the time he offered to pay the charges on the articles purchased, did not make, in a legal sense, a tender of the money; inasmuch as the money was not counted, or in fact offered to the defendant. The rejection of the proposition by the defendant, rendered it unnecessary to count the money, or to make any further tender of it. It was equivalent to saying to the plaintiff, that his money would not he received if actually offered. Judgment affirmed.