656
FEDERAL REPORTER,
vol. 48.
law from the they:'Were first enacted, and the 'new provisions are to act took effect;" in be understood as' enacted at the time the other the amendment ill not to be given a retroactive effect. Believing this: 'to be the proper construction ofthe .statute in question, and that it cannot beheld that the amendment wllS intended, to be retrospective, it follows that the demurrer to the petition must be sustained; and it is so ordered. '
WALItER v. : l . i.
GOOCHet, al.
,(Oi'rcuf.t Court, N. D. IlZinoiB. ,February, 1881.) ' '
L ,
"
a SAME-EvIDENpE.
A dealer lp. cured agreed f,h writing to furnish a, dealer in pro. . visions' in Liverpool "'711,·bbxGli Kingan's Cumberland Cut bacolS, II and "50 boxes , midd,le,B,· · · goods to be of choicest quality of and or sale to be voided, and goods to be sold for acoount of" the seller;, Both;of the packers mentioned were putting up brands of 'meat exclusively f.,4r tQe Liverpool market,. which bore the1rrellpective names, and other brands, without theirnalnes, for' tlie generai market. The seller furil.ished the latter , brands. Their quality Wail equal to that of the others; bu,tthose bearing the packers' aflrst-cla,ss ,repptatiqn in theI,.iver.pool brought a better price there, the othets P'eing ratee:tas second-class. SimIlar contracts were :mled ather dealers by fur.nish1ng the same meat. HeliL, that there was a breach of tb,e warranty. , " . The 'faet'that the brands'beartngthe pac1i:ers' names were Dot for sale by brogenevaij.y, l>Utonly by designated agents ,in Llyerpool,was no proof that such brands were not intepded, by the contract, when it did not allpear that tile purcnaser was'aware of fact." ," ' '" " " '
!bAT.
,
,,' ", ' ,
_
8. S.l.ME-EII'lIEC'J;', OJ!' RECEIVING GOODS.
Nor is it.a defense ,that the llurchaser received the after being notified by the bills Of lading that other brands were furnished, SlUce' the contract gave him Qut\lority, in ,such event to receive and sell the goods on the seller)! aceount. , , '
"SAME-EFPECT OJ!'PAYING DRAFT.
,him.
Acceptance and payment by the Jlurchaser of drafts drawn upon him in payment. therefor, after he became aware of the breach of contract., were not prejudicial to ' . ' ,,'
, At Law.
;Edward A·. ,Dicker, for plaintiff. loseph Wright, for defendants. ,BLODGljlTT, J. This is an action on a guaranty by defendants on the sale of a quantity of meats plaintiff. Plaintiff, in November, 1876, -was a dealer in provisions 1in Liverpool,England. Defendants were "Cilealers incmed ments in the city of Chicago; and OlleR. H. Rose was agent for the defendants in Liverpool. On the 24th of November, Rose, as ,agent for defendants, by contract in writing, sold to plaintiff "75 boxeS Kingan's Cumberland Cut bacon," for Shipment from Indianapolis dUlling, November, at 42 shillings per cwt., and "50 boxes Thallon's Stafford middles," 'at, 44 shillings per cwt.; "goods all warranted to be of choicest quality of grade and brand, or sale to be voided; and goods
WALKER'll. GOOCH., '
657
to be sold for account of Gooch & Barber." At the time this sale was made, Kingan & Co. were packers of meats in Indianapolis, Ind., and John Thallon was a packer ofmeats in Chicago. Kingan & Co. put up for the Liverpool marke,t a brand ,of bacon marked "Kingan's Packing Co. Cumberland Cut Indianapolis, Indiana," which was forwarded exclusively to an agent of Kingan at Liverpool for sale there. It, was not, in the han,ds of general brokers here for s,ale. Kingan also put uP another brand, of bacon, marked "Taylor's Cumberland Cut Bawas.in the general market, and bOl,lght .and ,abroad.. Thallon put up, a brand, of solq.,through for the Liv;erpool and forwarded them to his ,agell!iatthat place, ,marlted. "John Thallon's Stn ffor4 ' and ,he u,1.so p",t up another1>rand. marked "Empire Packing-House Stafford Mjidples," which were iii, the ,general market, like The,proof leaves the exact wording of these brands somewhat in doubt, it, clear and ,undisputed:}bat one of the brands bore and 0Ile of the Thallon brands bore the nameo! defendan,tSU,ll,ed this, c,o',ntract,by ShiPP"l,'ni',t,o the Taylor brand. of the KingaJ;l brand,AAd 50 boxes ",middles" branded with the Empire Packingij:ouse brand, insteadQf the ,Thallon brand; but the proof shows mat the ',',bacqn" was infact paplred by Kingan & Co.· of Indianapolis, I,md were in'fact packed by John Thallon, and that the quality qfthe goods was to those bearing the names, of Kingan Tpallon. At the time of,shipment, defendants drew on plaintiff at 60 days' sight for the purchase price of the goods, less the freight, and the ,dr!1fts went forward with, ,the bills, of lading attached, describing the goods. and defendants also forwarded to plaintiff by mail, at the timeof shipment, invoices of .the describing them by their brands or marks. ,Plaintiff accepted and paid the drafts in the due course of busand on the arrival of the goods paid the freight,aQd placed them in the hands of a broker to be sold. and brings this suit to recover the the prqceeds of the goods and the, amount paid for difference them j plaint,iff' assuming that under the .contract he had the right to sell the as the property of the. defendants, if they did not answer the guara;nty· ' " The only question i,n the ,case is ,,,hether defendants bad the right to fill their contract with any other brands of meat than those bearing the of "Kingan" and "Thallon," respectively. The p,roof shows clearly thl;tt, th.e brand of ,bacon known in the LiverpooLmarket as brand of Illiddles known as "Thallon's Staf"Kingan's Bacon,," and ford¥iddles," "had a firs.t-class reputation, and always brought the top in Liv(;!rpool, and that "Taylor" brand of Kingan's bacoQ, and brand of Thallon's middles, were rated as secondgoot,ls pf those packers, and that on the arrival of these goods at Liverpool "Taylor" brand of bacon wall worth in the market 38 to 40 shillipgs and the "Empire" brand of middles was worth in the sanwniarket 40 to 42 ,shillings, while Kingan's bllocon,brapded 'Yith vA8F.no.8-42· . ' i
658 tniipwr.was td4¢"shllHngs per'Owt.; and Thal'lorr's 'the brand, were'worthJ 148Jo50 'lings'petcwt.L''rh'e contracHalls for '''the'choicest:quality''O'l grooe and in this show that 1brarid," lHid, 'contracts of ItMs kind: w'ere \;Iy other denIers, itt a,bo\\t the time this contract ,by of "Taylor" brands, 'lam6ftheopihron the'·true construetion of the 'conlract called for 'choicest;brarid of Kingan's anll ThaUon's' 'ihiddlesj and -the 800,','ws tH,lit,th,ec,h, b,',rahds,"Of,',th,O'3El paCkers we,r,!l 'those, be,ar,in g names. 'Tllegoods' forwarded'were not 'of those brands: of corltnlct. But Wisurged that the 'gooas'brantled ,*ith the iIidividualniunes of these packets were not for ;therefore-',the to cllntract whlChwereso for sale 'by ibroJti\ts: 'The to tliisis that proof'ln the case tending ,to'show plaintiff only'certainagebtsof Kingan and were their Dames as parl'ofthe bra#d., The are parties have payd4mage$ for n9n-peHorman980J'Contracts for which they did or'controilli the time they preteuQed .. :, So,'if in this case saw fit wentefintoaeontrnct'. goods, tliet'conldnot delivet, their inabiI. iii thperfonh is no defense; although .theproof as to 'Who' the sale of these' btands" has some bearingupon the what meant by tbtHeims i used in tlieeOntract. But the ptbof'leayes no doubt ltf tnY mind .tbntthe of the terms used' l;'j'lquiresthe contraetto:pe filled With"goods' bearing the individual Thall'on brands.;: ,,' ,." ,,' .',' It,iardso inbellalf Of that plaintiff had notice, by the bills dfladingand itivoi'ces, of thebrand"S of goods forwarded to him, 'aJ,1d thathe Sllot11d atl 'o'nce have refused to the goods and pay the draffillf tlie invoicasof' the goods shipped. shoW that' they were 'not of the brand' called' fof 'by' the, cpntl'libt.; , I do riot, think this was , tq.e Tight o( ,tl,(ifj 'cQotract;' that, Ifthe goods are not of the' bratid -and grade'.called for, the sale IS "t<.> .bevoided, ,and the goods solq for account" of defendants. , This, in the '. plairitiff1the bI:olteri , it became his dlitt'to sell the, good's' for and 'to apply the proceeds ito fbEl paYl'nent' of hisa'dvaqces; as'fa:r' as 'they would go. The contract :may1k'a,q.id, to be ai;ld iWoVided H(l, own: terms for the of' the ,not' meeting' the gtatrallt'y,-a,very wise ·and vropefprovision, considep.llg the 'wbicbsuch conprovlsibn',lfthe. goods 'were not tracts.'th·e' made, because, Qut the of the cOntract, the plaintiff would have 'ba,d ari,gIit! to tejectthem; and theylwollld have been left in a and perhaps ruined,I?1' largely deteriorated, before notice coqld be giventothe 'Qwner. 'It was,therefore,''¥ise toputinto the coritractaprovision tHiit the plainti1i' should "l!qspose of the goods as a
sap'
to
659 broker for the at the)est pnce he could get. If the proceeds' were insufficient to pay advances arid expenses of salet then defendants are liable for· the balance;' It is not, perhaps, llecessary to pass upon the question as to plaintiff's the goods did not answer obligation to accept and pay the drafts in the contract, although I incline to the opinion that under this contract it waS his duty to do so. . He certainly had the right to accept and pay defendants'drafts drllwnupoIl him, and on which drafts defendants had obtained the money, upon the faith that they. would be so accepted and paid; and his refusal to do 80 might have worked most serious injury to defendl1ritil'crerlit, by dishonoring their paper in a market where it was ofthe utmost importance to them to keep their credit good. 'laID, therefore, of opinion that plaintiff bas made a clear case of right to reco'Vel',8nd should have judgmetit 'for the amount due; being the ditferenrqebetween the price paid for the under the contract and.' the net proceeds of the aale. Judgment for plainti1f.
SHIPPEN tI. BOWEN.
(Oh'cuit Court, D. Colorado. AND PROOPS-SoJBNTEB.
1888..) . '
a declaration ex delicto, chargtnA' that defendant, to induce plaintiff to purCihBBe eertain bonda, repreBllnted them to be genuine and valid, whereastbey 'Wete iD fQ(lt 'WortbJeaa forgerlea, tbere can be no recovel'yexcept upon proof that defendant, knew them to be forgeries, or that he expressly represented them to be genuine; ,
At 'Law.
Action of
MoCRARy,.J. Although this case was tried before the district judge, at his request, and with the consent of! the parties, the motion for anew trialbasb¢en submitted to me. It is an.action ex, delicto in the usual formoC a declaration for deceit. The com.plaint charges that, to induce plaintiff to, purchase certain bOIirls t the defendllnt re"presented that they were genuine and valid bonds, whereaS, in truth and in fact, they Iwere worthless'{orgerip,s. The court charged.the jury that it was necessary for plaintiff to show tbiltthe defendant, at, the time of the sale· of the bonds to plaintiff, misrepresented the facts concerning their genuineness. In other words, the court was of the opinion. and so charged the jury, that plaintiff could not recover in this action by merely proving a sale of the bonds to him by defendant. and that the bonds were forgeries. It was held to be necessary to prove knowledge on the part of the defendant of the forged character of the bonds, or an express misrepresentation concerning the fact of their genuineness. The counsel for plaintiff insists that in such a case as this no 8cienter need be alleged, nor, if alleged, need be proved. I am unable to concur in the soundness of this