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Wixon v. Ervay

Supreme Court of New York, Appellate Division

March 6, 1912

HENRY R. WIXOM, Respondent,
LEWIS W. ERVAY, Appellant.

APPEAL by the defendant, Lewis W. Ervay, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Schuyler on the 7th day of June, 1910, upon the report of a referee.


Bertrand W. Nye [Irving W. Cole of counsel], for the appellant.

Charles B. Swartwood [E. W. Personius with him on brief], for the respondent.


The defendant sold his wool to Northrup & Co. to be delivered on the cars at Odessa, to be paid for on delivery. Defendant ordered the cars and they were placed at his disposal on the siding. Northrup came to the defendant's place with Herbert, whom he introduced as the man to whom he had sold

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the wool, and together they sorted and sacked the wool, and a greater part of it was put upon the cars. Defendant had shipped wool and other commodities many times from the station, and the railroad company usually sealed the cars at night, he removing the seal in the morning and continuing with the work of loading. On Saturday night, July eighteenth, most of the wool had been loaded upon the cars, but nineteen bags remained at the defendant's barn. At the request of Northrup and Herbert, with the knowledge and consent of the defendant, the railroad company delivered bills of lading to Northrup Saturday, at the time when the wool was being loaded upon the cars, and some of it still remained at defendant's barn, which stated the weight of the wool, subject to correction, at 20,000 pounds, which bills of lading Northrup indorsed and delivered to Herbert that night, receiving from him a draft on his firm at Philadelphia for the purchase price. Before Northrup and Herbert left the defendant's place Saturday, Northrup, in the presence of Herbert, agreed to settle with the defendant for the wool Monday, and it was understood that Monday the loading of the remaining wool was to continue. The defendant loaded upon the cars 135 bags of wool, containing about 25,000 pounds. He received from Northrup a check for the greater part of the purchase price and refused to complete the delivery or to let the cars go forward until the whole purchase price was paid. Tuesday Herbert telegraphed to the plaintiff, who was the station agent, asking the number of bags upon the cars. He saw the defendant and the defendant told him 135, and plaintiff telegraphed the number to Herbert. After receiving the telegram Herbert paid the draft. At the time of receiving the telegram and answering it the plaintiff knew that there was a dispute between the defendant and Northrup about the wool and that the defendant refused to let it go forward until settlement was made. No settlement being made Wednesday, the defendant removed from the car 10 bags of wool, notified the plaintiff that he had done so, and on the twenty-seventh consented that the cars go forward. The company sent them forward, collecting from the defendant demurrage for the delay in releasing the cars. Herbert made claim upon the railroad company for the wool removed by the

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defendant from the car; the railroad company settled with him and plaintiff paid the railroad company the amount it paid and received an assignment of the claim and wool and brings this action to recover against the defendant for the conversion of the wool so removed from the car, and has succeeded.

Herbert swears that he knew the bills of lading were issued irregularly and that at that time the wool had not been delivered to Northrup and that the wool was then in defendant's possession. It does not appear directly that Herbert was informed that the wool was to remain the defendant's until paid for, but from the fact that he understood that Northrup was purchasing the wool of the defendant, who was delivering it upon the cars and that the wool upon the cars was still in the defendant's possession and that he understood that the remaining wool was not to be loaded until Monday and that Monday a settlement was to be made with the defendant, he is, I think, fairly chargeable with knowledge that payment of the purchase price was to precede a delivery of the wool. The evidence does not indicate that Herbert was informed or believed that the wool had been paid for or that credit had been given for the purchase price. He knew the wool was being put upon the cars, and the greater part of it was upon the cars when he saw them. The only inquiry was as to the number of bags on the cars. He made no inquiry whether the wool had been paid for, was ready for shipment or had been turned over to the railroad company by the defendant. He apparently had confidence that Northrup & Co. would meet their contract so that the wool loaded would be shipped.

It cannot be successfully maintained by consenting to the issue of the irregular bills of lading and stating to the plaintiff after the receipt of the Herbert telegram that there were 135 bags of wool on the cars, that that waived the condition of the sale or estopped the defendant from relying upon it. When the cars went forward they contained about 23,000 pounds of wool, while the bills of lading in terms called but for 20,000. Herbert and plaintiff did not rely upon the bills of lading as regular because they knew that they were irregularly issued and did not correctly state the facts. The plaintiff, when he telegraphed Herbert the number of bags on the cars,

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knew that there was a dispute with reference to the wool and that the defendant would not consent to its going forward until he was settled with. It was not necessary for the defendant to again repeat his claim to the plaintiff because he well understood the facts. If plaintiff, when he telegraphed that 135 bags were loaded, had stated the fact, which he knew, that they could not be shipped until paid for, Herbert, if he did not already know the facts, would then have been fully informed. But I think it is evident that he knew that the defendant must be paid for the wool before it would go forward. If he did not know, perhaps he might claim an estoppel against the railroad company, but the railroad company and plaintiff could claim no estoppel against the defendant because they knew the facts.

Where property is sold and no time of payment is agreed upon, payment and delivery are to take place at substantially the same time; the vendor need not part with his ...

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