Wellauer v. Fellows , 48 Wis. 105 ( 1880 )

TayloR, J.

Ye are very clear that the court erred in directing a nonsuit in this case. It seems to us that there was not only evidence to carry the case to the jury, but that, unexplained, there was evidence upon which the jury must have found for the plaintiffs. The court seems to have labored under the impression, that, because the defendant denied in his letter, written long after the goods were received, the authority of Yader to purchase goods upon his account, except for cash, the plaintiffs had made out no cause of action against the defendant. This letter was an unsworn statement of the defendant in his own favor, made after the goods were delivered and used by him, and should have very little weight in determining the question of the agency of Yader.

There certainly was some evidence to go to the jury upon the question of the authority of Yader to order the goods for the defendant, and upon that point the case should have been submitted to the jury; but, whether the agency of Yader was proved or not, there was abundance of evidence tending to show that the respondent bought the goods of the appellants. 'Leaving out of view altogether the fact that the goods were sent to the respondent at the request of Yader, the evidence was sufficient to have sustained a verdict in favor of the appellants.

The goods were sent by the appellants to the respondent, accompanied with a statement that he had bought the goods of them for a stated price, which price they expected him to pay either on the receipt of the goods or within thirty days thereafter. This is the fair construction of the bills sent with the goods. The respondent received the goods upon this statement without objection, and converted them to his own use.

After doing this, he is estopped from insisting that he did not buy the goods.- He was notified that the appellants, who sent the goods, supposed they were selling them to him, and that they expected him to pay for them. If he did not intend to receive the goods as purchased by him of the appellants, he should have refused to receive them; but, having received them without objection, there would be no justice in permitting him to say afterwards that he did not buy them,' and would not, therefore, pay for them. The only excuse the defendant himself makes for his refusal to pay for them, is that he supposed they were paid for by Yader, and the false excuse that the goods were billed to Yader. On the argument, some stress was laid upon the words, “ Terms Cash,” in the bills. It is said that these words in the bills implied that the goods were paid for before they were shipped to the defendant. The proof, however, shows that such is not the meaning of the words; and the fact that the bills, when received by the defendant, were not receipted “paid,” must have advised the defendant that they were not in fact paid for when shipped to him. Had the goods been paid for by Yader or any other person, the bills would, undoubtedly, have been receipted. The respondent had no reason, upon the face of the bills, to suppose the goods had been paid for; and, having received the goods as sold to him, and converted the same to his own use, justice demands that he should pay for them, though they had never been ordered by himself or any other person on his account.

The facts of this case present a much stronger case in favor of the plaintiffs than the case of Cooper v. Schwartz, 40 Wis., 54, in which this court held that, upon the evidence offered, the question of the purchase by the defendant should have been submitted to the jury.

The defendant having received the goods from the plaintiffs, upon their claim that he had purchased from them, cannot, in the absence of mistake or fraud, appropriate them to his own use, and then disclaim the purchase. Ballston Spa Bank v. Marine Bank, 16 Wis., 120; Paine v. Wilcox, 16 Wis., 202-217; Beal v. Ins. Co., 16 Wis., 241.

By the Court. — The judgment of the circuit court is reversed, and the cause remanded for a new trial.