Palen v. Haake

Titus, J. The defendant appeals from a judgment of the municipal court for $50.38, for a car of coal claimed to have been sold and delivered to the defendant by the plaintiffs. It appears from the evidence that on the 5th day of September, 1887, the defendant bought three cars of lump coal of the plaintiffs at $2.50 per ton, to be delivered on the Gilbert switch; two cars of the coal were delivered on the 19th day of October, 1887; but the third car does not appear to have been delivered at that time. This is the load which is now [411] in dispute, and was worth $45.38. This car of coal was not actually delivered at the Gilbert switch until on or about the second day of December. It is now claimed by the defendant that the judgment is erroneous, and that he was not obliged to accept the coal at the time it was delivered, for the reason that it was not, as he claims, delivered in a reasonable time after the purchase. The plaintiff Burns testifies: “ I ordered the cars to the switch. I sent the order down to the railroad to deliver the cars to the switch. I sent the invoice of the cars to the defendant September 7, 1887. For some reason the cars were not delivered at the switch on time. About September 10th the defendant came to our office and said he would have to have some coal, and we gave him a car, and one load of “run of mines” coal from the Smith street yard. We told him, the defendant, we would get three others to take their place. About October 19,1887, we delivered two cars on the order and sent the bill, and on the twenty-sixth we delivered the third car, which is the one in dispute. We didn’t hear anything from him, and supposed, until, some time in October that he had received the three cars we had first billed to him.” The witness further says that on the 19th of October he and his partner drove out to defendant’s place. He then said that the third car hadn’t yet come, that he had burned that kiln, but could use the other car, and we should let it come along; that on the 26th day of October he ordered the Erie Railroad Company to deliver the coal, and he at the same time sent the defendant an invoice of the car. A week or two after this the defendant told him the coal hadn’t been delivered at the switch. That he made no further complaint about the non-delivery of this coal. The plaintiff, Palen, says in substance, that “he went with Burns about the middle of November to see defendant and collect the bill; that the defendant said he would pay the following Wednesday. He stated that he hadn’t received the last car of lump coal, invoice 2; but that he would get it as soon as it was placed where he wanted it; that it was not on the Gilbert switch, but was in the neighborhood on some other switch; he said he would take it when it was placed on the Gilbert switch; he said he was not in need of the coal then, but we should send the car along and he would take it anyway; he said nothing about sending it within a day or two.” The plaintiff then called Ryan- and McGuire, men who were in the employ of the railroad company to show they had ordered the coal, and that the coal had been delivered. This is substantially all the testimony offered by the plaintiff upon the question of the sale and delivery of the coal, and it seems to me that the facts are sufficient to justify [412] the court below in determining that under the circumstances of this case, the plaintiff did, within a reasonable time, deliverer the coal to the defendant, and was entitled to judgment for the amount, unless the defendant by his proof in some way answers the plaintiff’s case. The defendant called but two witnesses, himself and son. He says, “ two' cars came the 8th or 9th, for which we received an invoice about October 19th. I remember the talk with the plaintiff about the middle of November. I told them I wanted the coal if I could get it any time within a day or two. It was along about November 4th or 5th, that we talked. I had no use for the coal December 2d. I never offered to' take the coal after November 15th.” He further says “ that he sent his son to say that he didn’t want the car at that time. That it took about two or three weeks to get coal from the time the order was given.” The defendant’s son testifies “ that he went to plaintiff’s office on November 28th, and paid them some money; that he told him that his father would not take the coal, and had no further use for it.” The plaintiff Burns, in rebuttal says “young Haake did not refuse the car, and said nothing about his father not wanting the coal.” This is substantially all the evidence in the case. The testimony of the witness Haake, was disputed in every particular by the witness Burns, on his re-examination. The witnesses were all before the court below, and the credit to be given to their testimony could best be determined by that court. Ordinarily the plaintiff would have a reasonable time in which to deliver the coal after receiving the order. The plaintiff says it takes two or three weeks to deliver it after it has been ordered. The witness Palen says he called upon defendant about the middle of November, and had a talk with him about the coal, and the defendant said he would take it when placed on the Gilbert switch. It was placed on the Gilbert switch on the second day of December. It does not seem to me that the defendant has answered plaintiff's proof so as to entitle him to a judgment on the facts in the case, and as no other error is claimed to have been committed, in the court below, the judgment should be affirmed with costs. Beckwith, Oh. J., concurs.