Young v. Mertens

Bowie, C. J., delivered the opinion of this Court. The exceptions brought up by the appellant in this case are threefold; the first and second apply to the rulings of the Court below on the evidence ; the third, to the prayers granted by the Court at the instance of the appellee. As the last is the most important, they will be examined in inverse order. Eor a full comprehension of the points raised by the appellant, it is necessary to take a cursory view of the pleadings.

The appellee’s amended nar. (the suit being instituted on the 5th of February, 1863,) contains five counts. The first two framed obviously, though not expressly, on the second section of Art. 30 of the Code of Public General Laws, entitled Crimes and Punishments, as amended by ¹²⁴ •the Act of 1862, ch. 114. The last three, sounding in trespass, substantially complying with the forms of the Code in Art. 75.

The first count averred that the plaintiff (the appellee) being in possession of and owner of a canal boat, loaded the same with one hundred and sixteen tons of coal, at Cumberland, and consigned and directed the same to be delivered to Heiston & Co., of Georgetown, D. C., to be conveyed upon said boat, upon the Chesapeake and Ohio Canal, to the consignees at Georgetown, and the defendant fraudulently received the coal without the consent of the owner, knowing the same to be so consigned, of the persons engaged in transporting the coal on the canal and converted the same to his own use. The second count, reciting in part as in the first, further averred, that the defendant purchased the said coal without the consent of the owner, knowing the same to be so consigned, from the persons engaged in transporting the same and converted it to his own use. The third, fourth and fifth counts, severally aver that the defendant “took the coal,” “seized and took,” “ wrongfully deprived the plaintiff of the use and possession of, and converted the same to his own use.” To this declaration the defendant pleaded that he did not commit the wrongs alleged therein, and that he did the acts cpmplained of by the license and consent of the plaintiff. After the testimony had been offered, the rulings as to which form the subject of the first and second bills of exception, which will be hereafter considered, the appellee and appellant severally offered his respective series of prayers, all of which were granted, the appellant excepting to those granted at the instance of the appellee.

It is suggested in argument, that notwithstanding the facts were submitted to the jury, with the law which should govern them, according to the theory of each •party, yet the propositions were so conflicting that it was ¹²⁵ impossible for the Court to determine which the jury adopted. Where prayers granted on the same hypotheses of fact are so inconsistent, that conformity with one necessarily implies disregard of the other, they are calculated to mislead, and therefore erroneous ; but instructions founded upon different hypotheses are not liable to that objection. Moreover, it must appear, not only that the instruction was erroneous, but that the appellant was prejudiced by the error. Without attempting to recapitulate the several hypotheses embodied in the respective series of prayers, it is sufficient to say that the proposition of the appellee was, that the title to the coal reverted to him upon the refusal of the consignee to accept it, and the latter had no right to authorize the sale of the coal on the consignor’s account, by the persons in charge, without the consignor’s consent.

In the language of the plaintiff’s first prayer, “that after such refusal the plaintiff, at his election, had the right to rescind the said contract of sale, and that upon such election the title to the same vested in him.” The counter proposition of the appellant is not based upon the fact of refusal by the consignee, or the assumption of an election to rescind, but that if the consignees, on notice of the arrival of the coal could not unload it, and directed the persons in charge of it to sell it or do the best they could with it, which facts (if found) vested the title to the coal in Heiston & Co., and the plaintiff could not recover under the pleadings in the cause. The “refusal to accept” is a very different disposition from that relied on in the appellant’s first prayer, and so, of all others in his series, the facts on which the propositions of the appellant are predicated, are materially different from those relied on by the appellee. But it is said there was no evidence to sustain the appellee’s prayers, and they assume the fact of a rescission ¹²⁶ of the contract. There was evidence that those in charge of the boat, upon the refusal of the consignees, or their failure to receive the coal, had telegraphed to Cumberland for orders, and been ordered to sell for what they could get, and that théy did sell the same, but one load was taken by the appellant.

This evidence, if believed, was sufficient to warrant the instruction granted, as far-as the same depended on the fact of his election to rescind. Since the amendment to the Code by the Act of March, 1862, chapter 154, it is too late to raise the objection to the prayer, that the fact of electing to rescind was assumed, that objection not appearing to have been raised and decided below. The appellant further contends to show the error of the first and third prayers of the appellee, that the facts in evidence proved a delivery of the coal to the consignees, whereby the property in the coal vested in them. This position may be legally correct, as between consignor and consignee, and yet such a special property exist in the former, as entitles him to an action for a tortious taking of the goods.

The authorities cited by appellant and appellee sustain this view. “In case the vendee refuses to accept articles sold to him, the vendor may consider them as his own, if there has been no delivery, (of course an actual delivery is meant,) or he may consider them as the vendee’s, and has the right to sell.” This right is as much for the benefit of the vendor as the vendee — indeed it is for the protection of the former, particularly against loss, although it may enure to 'the benefit of the latter by reducing his liability pro tanto. 2 Parsons on Contracts, 484, Edition of 1855. In the case of Sands & Crump vs. Taylor & Lovett, 5 Johns. Rep., 410, Kent, C. J., uses this language: “ The vendor