Dresser Manufacturing Co. v. Waterston

This case turns on a question of property, and that depends on the construction of a certain contract between *16the plaintiffs and the Home Printing Company, under whom the defendants claim title. The case is trover, charging the defendants with the conversion of sundry cotton goods, consisting of prints and furnitures, and the defendants rely on an alleged sale from the plaintiffs to the said Home Printing Company.

The terms of the contract between the two companies were proved by the testimony of the agents of the contracting parties who made the contract, and by Elbridge Gerry, a merchandise broker, through whom the parties contracted. Gerry, after the contract was completed, entered a memorandum of it in a book kept by him, as follows : [The judge recited this memorandum, as set out, ante, pp. 9, 10.]

Gerry testifies that the contract was correctly set forth in said memorandum, and that it was understood by him, that the goods were not to become the property of the Home Printing Company, until paid for according to the contract. And C. Merriam, one of the plaintiffs’ agents, testifies that Sibley stated the terms of the contract substantially as they were stated in Gerry’s memorandum ; and they are so stated in the invoice of the goods.

This is the substance of the evidence of the contract, and there is no contradictory evidence, and no question has been made as to the terms of the contract; the question is, what is its true construction ?

The jury were instructed, that if they believed the testimony of Gerry and Merriam, it constituted a conditional sale, and that as it appeared that the acceptances of Hoyt & Bogart were never furnished, the plaintiffs were not devested of their title to the goods ; and this construction of the contract we think correct, and conformable to the manifest intention of the contracting par-lies. It appears very clearly from the evidence, that the plaintiffs never intended to trust to the personal credit of the printing company, for the payment of the purchase money, and that it was so understood by the other party. The goods were to be consigned in the names of the plaintiffs’ agents. The agent of the printing company agreed to cause the goods to be insured for the plaintiffs’ account, and when paid for by the acceptances, *17a bill of the goods was to be given to the agent of the purchase.

The true meaning of this agreement is apparent, and by no reasonable construction can it be considered as an absolute sale. It was either a conditional sale, by which the property was not to vest in the vendees, until they should give security for the price ; or it was an executory contract of sale, to be completed on the performance of the same condition. And upon either construction, the property in the good* was not changed.

It has been said, that no express condition is to be found in the terms of the contract; but no particular words are necessary to express a condition ; and we think the stipulation, on the part of the plaintiffs, to give a bill of the goods when security should be given for the price, implies the condition on which the property in the goods was to vest in the vendees. And this is confirmed by the other terms of the contract, and by the whole evidence in relation to the question of property. The goods were consigned by the plaintiffs to the printing company, upon certain conditions, and were insured as their property according to the terms of the contract; which conclusively shows that the goods were considered by the parties as the property of the plaintiffs. And there is no evidence whatever which has any ten dency to prove an absolute sale.

But admitting the sale to be conditional, the defendants’ counsel contend that it had become absolute before the consignment of the goods to the defendants ; either by an unconditional delivery, or by the unreasonable neglect of the plaintiffs to demand the performance of the condition, or to reclaim the goods.

That a conditional sale may become absolute by an unconditional delivery, unless from the circumstances of the case it should appear not to have been the intention of the vendor to waive the condition, is undoubtedly a well established doctrine. But in the present case, it is manifest that, by the terms of the contract the goods were to be delivered to the printing company to be printed, and to be afterwards consigned to Hoyt & Bogart, for the purpose of procuring their acceptances, and to enable the printing company to perform the conditior of sale The goods *18were consigned to them as the plaintiffs’ properly, and not to complete the sale. The delivery was in pursuance of the contract, and there is no ground for the presumption that the condition was waived. If the contract was conditional, so was also the delivery. The condition, by the contract, was not to be performed until after the goods should be printed and the acceptances should be procured ; and the consignment of the goods to the printing company for that purpose, instead of proving a waiver of the condition, rather proves the plaintiffs’ intention to insist on its performance. But the plaintiffs were not bound to exact a strict and punctual performance of the condition ; and by their allowing further time for the performance, they are not to be considered as having waived the condition There is, therefore, no evidence of the waiver of the condition of sale ; and it is immaterial whether the contract be considered as an executed contract of sale, or as an executory contract to be completed by a bill of sale after the performance of the condition. If by the terms of the contract the condition were to be performed at the time of the delivery, and the performance of the condition were not then insisted on by the vendor, this doubtless would be good evidence of its waiver. Furniss v. Hone, 8 Wend. 247. Carleton v. Sumner, 4 Pick. 516. Smith v. Dennie, 6 Pick. 262.

The other ground of defence is, that admitting the property to be the property of the plaintiffs, yet as the Home Printing Company were their agents, they are bound by their agents’ acts, although done in violation of the plaintiffs’ instructions. But the Home Printing Company were the special agents of the plaintiffs, with limited authority to do certain acts ; and it is very clear that as they exceeded their authority, the plaintiffs are not bound by their acts. A special agent cannot bind his principal by any act not expressly authorized.

Tri regard to the damages, we are of opinion that the plaintiffs are not entitled to recover the full value of the goods in their printed state. The value of them in their brown state appears to us a more just and equitable measure of damages under all the circumstances of the case. Green v. Farmer, 4 Bur. 2223