Ranney v. Higby , 5 Wis. 62 ( 1856 )

By the Court,

Cole, J.

The points insisted upon in this court by the counsel for the plaintiffs in error, are:—

1st. That the Circuit Court erred in submitting the' question to the jury to determine what the contract was between the parties; and

2d. That a proper, reasonable and sound construction of the contract shows that the plaintiffs are entitled to recover-for the amount of the salt sued for, notwithstanding what is contained in the letter of November 21, 1851, and -that the court should thus have instructed the jury.

We think it hardly admits'bf discussion, that the construction of this contract was a matter belonging exclusively to the court, and not to the jury. The court should have?looked at the letters containing the contract, determined what it was, and the rights and liabilities of the jjarties under it. In the instructions asked for below by the counsel for the plaintiffs, and refused, the court was called upon to give a certain construction to the contract, which it declined doing, but charged the jury, in substance, that it was their duty to look at all the correspondence of the parties, and all the proof iii the case, and determine what the contract realty was in all its parts; that this was a question wholly for their consideration. In this, evidently, the court erred, and there must be a new trial, unless it appears that the plaintiffs were not injured by the charge, and that the jury gave the contract the correct construction, the same that the court must have given had it put a construction upon it, and were right in their finding. And this leads to the second point in the case, to wit: what was really the contract between the parties ?

When this case was before us, at a previous term, we stated that it appeared to be the ordinary case when a merchant in one place orders goods of another elsewhere; that the letters of Higby and the telegraphic dispatch, .constituted an order for 1,500 barrels of salt; and that when the plaintiffs in pursuance of tbe order, delivered,.the salt on board tbe Hale and Patton, tbe sale was ’ consummated, and tbe liability of tbe parties became fixed. Conceding that this view of tbe case was correct, it is now contended, that by a subsequent arrangement, tbe relations of tbe parties became changed, tbe plaintiffs agreeing, in case tbe salt was lost on tbe way, to release Higby, and to look to tbe insurance company for tbeir pay ; and that tbis appears from tbe letter of plaintiffs under date of November 21st, 1851. Although that letter is not entirely clear in its méaning, yet we do not think its language will fairly admit of such a construction. It is to be observed that tbe salt bad been insured at Buffalo in tbe Utica Insurance Company, which was undoubtedly considered sound at tbe time of effecting tbe insurance. And from tbe previous letters between tbe parties, it appears that when salt was sold on time, tbe plaintiffs were accustomed to draw for tbe amount by bill payable at sixty days. Tbis it seems was tbe usual course of dealing between tbe parties. Consequently, accompanying tbe plaintiffs’ letter of November 21st, was a draft for $1,500, payable at sixty days, being tbe greater part of what was due them on account for salt already sent forward. Higby was requested to accept tbe draft; and as we suppose, return it to tbe plaintiffs in Buffalo, to be used by them as collateral security, at tbe bank, in getting ipaper discounted; and avoid tbe necessity of getting an indorser. Tbe plaintiffs say they are obliged to realize on the salt, and so resort to tbis expedient. They remark in tbe letter, “ should tbe salt now on tbe way to you be lost, we will look to tbe insurance company for tbe amount, and tbe paper may be returned.” But when and to whom, returned ? Tbe acceptance of Higby being used at tbe bank as collateral security for plaintiffs’ paper, would, in a great measure, be under tbeir .control. In tbe event tbe salt shipped by tbe Hale and Patton was lost, tbe amount of tbe insurance would cover tbe draft. And as we understand tbe letter, tbe plaintiffs in that case proposed collecting tbe money on tbe policy, and applying it to tbe credit of Higby, and for bis benefit, either in taking up tbe acceptance, or in meeting it, if negotiated. Something of tbe kind was intended by tbe parties. But we cannot believe anything more w6as proposed, or understood at tbe time. For it would be extraordinary, under the circumstances, for them to propose releasing Higby from all liability to meet his debt, and agree to look solely to the insurance company'for their pay. We cannot imagine any possible motive for their so doing. They would not render the debt any more secure, or get their pay any earlier, but the contrary. Higby was in no wise prejudiced by the arrangement adopted. He did not become liable to pay one whit the sooner for the acceptance. He was accustomed to pay in sixty days. The plaintiffs gained nothing by Higby’s acceptance, except it might have saved them the trouble of getting an indorser. But it was not as advantageous to them as it would have' been to have had Higby’s acceptance discounted in the usual course of trade, or not more so. So that in our view, construing this language as implying an agreement on the part of the vendors to absolutely release their debt against Higby, and look to the insurance company for their pay, is giving to the language a most unreasonable and forced construction.

It is insisted by the counsel for the defendant in error, that the plaintiffs had been paid, by a draft upon the insurance company. But how can that proposition be maintained in view of the proof in the case ? In their letter of May 26th, 1852, introduced by the defendant, the plaintiffs say that the company had failed, and that they took up the draft after having discounted it. This shows very clearly that they had realized nothing upon this draft,’ and warrants the presumption that it was in their possession when the suit was brought. Yet the draft belonged to the defendant, and should have been produced at the trial. The defendant is entitled to the money upon it from the insurance company. We do not find that upon the trial any particular objection was made by the defendant because the draft was not produced, and, therefore, we do not think it would be right to charge the plaintiffs with it, at this stage of the cause, merely on the ground of this omission.

The judgment of the Circuit Court must be reversed and a new trial ordered.