Barrows v. Cushway ( 1877 )

Marston, J.

We do not consider it at all necessary to pass upon all the questions raised in this case. Admitting, for the purpose of this case, the contract between plaintiffs and defendant Oushway to have been executed in such manner as to bind the latter, and that parol evidence would have been inadmissible to show that the agency was to be exclusive within the territory mentioned, points upon which we express no opinion, there was nothing in the contract which would bind Cushway to act as agent for any definite length of time, or which Avould transfer or pass to him title to the sewing machines shipped to him thereunder.

It appears, and the record states was undisputed, that the defendant requested one of plaintiffs’ agents in the spring of 1875 to remove and take away the undisposed of machines then in his possession, and that he wrote the plaintiffs the first of May to like effect, but received no reply thereto. This he claims to have done upon the ground that they had violated their contract by appointing another agent to sell machines within the territory previously granted to the defendant. The reasons, however, are not of so much consequence. On the 14th of June defendant’s store was destroyed by fire, and the machines then unsold, together with certain property of the defendant, were destroyed, and on the trial it was admitted by counsel for the-respective parties “that the machines and fixtures thereto belonging, for which compensation is sought for in this action, were destroyed by the fire of June 14, 1875, and that such fire occurred without fault or negligence on the part of defendant Cushway.” The court charged the jury that “if they found Cushway gave plaintiffs notice a reasonable time before the fire to take their machines off his hands, he would, after the expiration of such reasonable time for removal, be answerable only for gross negligence, and that plaintiffs could not recover for machines destroyed by fire without fault or negligence on the part of Cushway after the lapse of such reasonable time.”

Under the declaration and claim of the plaintiffs the charge here given was correct, and was, under the admitted facts, decisive of the case, and the other rulings of the court, whether correct or not, could have had no material bearing.

The judgment must be affirmed with costs.

The other Justices concurred.