Goldsmith v. Bryant , 26 Wis. 34 ( 1870 )

Cole, J.

It is entirely clear that the plaintiffs did not intend to absolutely deliver the goods in question, and part with the possession, until the price was paid. It was a cash sale, and the delivery and payment were to be simultaneous. By the contract, the plaintiffs were compelled to cut, make up, and nail down the carpets, and to make up and hang the curtains, and fix the cornices, in the defendant’s house. And until this was done, they could not insist upon payment. It is not like the case of the sale and delivery of a package or box of goods which the vendor can retain within his exclusive control and possession until payment is made. But here it was a part of the agreement that the plaintiffs were to make up and lay the carpets, and hang the curtains in the defendant’s house, before they could insist upon payment. The witness, Jacob Mampel, testified that he was sent to the defendant’s house to finish the job of hanging the curtains, the carpets having been laid the day before by another man; and that he was instructed by the plaintiffs to collect the money for the goods, and not to leave the goods until paid for. He says that when he got through he presented the bill to the defendant, and told him that he would like to have the cash upon it, and the defendant said: "Well, I will be down in the store and pay it.” Upon the witness informing him that he was instructed to collect the money then, and to fetch it with him to the plaintiffs, the defendant again said: “ Well, that is all right; I am going down to Mr. Engleman’s, and I shall be at the store between three and four o’clock and pay it.” And one of the questions submitted to the jury was, whether the plaintiffs, by leaving the goods in the defendant’s possession as proven by this and another witness, had made an absolute delivery of them, waiving a simultaneous payment, and had lost the right to reclaim the goods. As bearing upon that question, the court instructed the jury, that; when a merchant sells a bill of goods, and nothing is said about giving time to pay for them, the law implies that they are to be paid for, either at the time of the sale or at the time of delivery; that the vendor, however, may waive this condition or lose it, and that one of the questions for them to determine was, whether the plaintiffs had waived it or lost it in this case; and that if they should be satisfied, from the testimony, that the sale of the goods was without any credit, then they were to consider whether the plaintiffs had forfeited or lost their right, under the circumstances of the case, to resume possession; that, where no stipulation is made' at the the time of the sale as to the time when payment is to be made, the law implies that they are to be paid for at the time and place of delivery, and that it is the obligation of the purchaser not only to receive the goods, but to pay for them; that, if the goods were delivered without requiring the payment, the property passed to the buyer absolutely, but if payment was required at the time of delivery, and not made, the plaintiffs would be entitled to a reasonable time within which to resume possession; and that it was a question of fact for them to determine, whether the plaintiffs, within a reasonable time, exercised their right to take the property after the delivery thereof to the defendant and his failure to pay for the same.

Although no exceptions were taken to the general charge on the trial, yet it has been argued here that this portion of it was unsound in principle, and calculated to mislead the jury to the prejudice of the defendant. But it seems to us to have been a very proper direction to give the jury, in view of the evidence. For it appeared that the plaintiffs waited a fortnight or more after the carpets were laid and curtains hung, before they attempted to reclaim the goods, but all the time trying to find the defendant to obtain the price. And not being able to find him, or procure their pay, they brought this action for the possession of the property. And one ground relied on to defeat a recovery was, that the plaintiffs, by leaving the goods in the possession of the defendant in the manner and for the length of time they did, without payment, had clearly waived their right to insist upon simultaneous payment, as a condition to their parting with the title Permitting property to remain that length of time in the possession of the vendee would doubtless in many cases be considered strong, if not conclusive, proof that the vendor waived immediate payment, and delivered the goods absolutely. But a case might arise, and indeed we think this is such a one, where the peculiar circumstances might excuse or justify delay on the part of the vendor in asserting his right to remove the goods. For, as observed by the counsel for the plaintiffs, the delivery of these goods was laborious and difficult, and to take them away from the house was a work of time and expense, injurious to the articles themselves, and therefore to be avoided unless as a last resort. In the first instance the defendant evaded a payment down, by an act of bad faith. When told by Mampel that he was instructed to collect the money of him then, the defendant said he would' be at the store in the afternoon and pay it. He did not go to the store, but kept out of the way. Under the circumstances, as detailed by the witnesses, some delay on the part of the vendors in reclaiming the property might be excusable. And the jury must have found that they did not permit it to remain in the possession of the vendee an unreasonable length of time.

Again, it is said that the plaintiffs could not recover because they did not, before the commencement of the suit, demand the goods and refund the fifty dollars which they had received on account of the purchase-money.

But it seems to us a sufficient answer to this objection, to say that it appears that the plaintiffs made the best demand they could. The goods remained in the actual custody of the defendant’s wife and daughter, he being absent. The wife must be deemed to be the agent of the defendant for the purpose of a demand and refusal.

In respect to refunding the money, one of the plaintiffs testifies that he offered the defendant’s wife the fifty dollars if she would give up the goods. He says, upon that point: “ I told her if we could not get the money, I would have the goods, and have them that day.” And, in answer to the question as to what she said about paying the money, the witness further testified: “ She said she could not give it to me then; and then I said we must have the goods; and then she made some threat or other, that she would shoot anybody that would come for the goods, or something like that.” In view of such a threat from the defendant’s wife, who had the goods under her charge, we think the plaintiffs made all the offer to refund that the law required.

Again, it is said that the verdict fails to find the right of property in one party or the other. The complaint alleged the wrongful detention of the goods, the property of the plaintiffs. The answer denied this allegation, and set up property in the defendant. The jury found “ for the plaintiffs in this action, and that the goods and chattels mentioned in the complaint are, and were at the time of the commencing this action, wrongfully detained by the defendant from,” etc. This, upon the issues, is equivalent to a special finding of the right of property in the plaintiffs.

These remarks upon the general questions involved in the cáse render it unnecessary to specifically notice the exceptions taken to the instructions given at the request of the plaintiffs, as well as those taken to the refusal of the court to give those asked by the defendant.

By the Court. — The judgment of the circuit court is affirmed.