Daily globe. [volume] (St. Paul, Minn.) 1878-1884, 1878-05-25
SUPREME COURT.
DECISION OF CASE FILED JESTER
gs DAY.

OF CASE FILED YEsTER-
William Chandler. appellant, Us. William
Crooks, Charles a.. DeGraf and Nicholas De-
Grat, partners, az DeGraf e Co.. respondents.
I OPIN1oM
As We understand the following are the un-
disputed facts conceded by. both parties. De
PENDANTS being engaged in the construction OF
certain lines Of railroad, the plaintiff either as
an original party or assignee entered into and
undertook the performance Of various tie con-.
tracts made with them, whereby he became
obligated to deliver to them subject to inspec-
ton, ETC., different quantities Of railroad ties,
amounting in the aggregate to 224, 600. By the
terms of one of these contracts Ex.l,D one
hundred Thousand were required to be deliver
ed at his option, either ''on the line of the st.
Paul d Pacific at Brainer, or on the line of the
Northern Pacific, not more than forty miles
east of Brainerd and as near Brainerd ~
possible, OF on the line OF the st. Paul q
Pacific railroad at any point between Sank
Rapids and Brainerd" contract, Ex. 2 called
for the delivery Of sixty Thousand ties ION the
line of the st. Paul and Pacific railroad at
Brainerd'' contract (Ex. 2, required the deliv-
cry of twenty-five Thousand ION the line of the
Northern Pacific railroad within forty miles Of
aBrainerd." There were two other contracts,
one known as the ''Halden contract" for Ia
COO and the other parol contract for Is, 006,
and the record before us does not disclose
specifically the required place of delivery under
either of them. In the performance of these
various contracts plaintiff delivered 2O,979
more ties than sufficient to fill them, and
fhov,rv khnu - iLo r,,o7 nd md
value as those called for and accepted on the
contracts. the defendants refused to accept
them on final settlement, or to pay
for them. The present controversy
principally concerns this excess, the rest of the
ties that were delivered having been received
and paid for except some that were rejected on
the inspection as culls for not answering the
requirements of the contracts; the claim for
which will be hereafter separately considered.
It is commended by the plaintiff that this ex-
cess occurred entirely in the delivery along the
Northern Pacific railroad, and that it compris-
ed the last 20, 379 ties that were there deliver
ed; and as the defendants took and appropri-
ated all the ties that were left on delivery on
that line of road, they were liable to him for
such surplus in this action. This is contested
by the defendants, who claim that the ties
constituting the surplus were never, in fact,
from the rest; neither were they delivered ex-
clusively upon either line of road, nor under
or during the fulfllment of either contract,
but that they were Unfortunately delivered
with the rest, and while all the contracts were
being performed together as one contract or
job, and were at the time so intermingled with
those received and accepted under the con-
tracts and paid for by the defendants as
to become wholly indistinguishable
therefrom, which of these respective theories
was true, was question of fact fairly open to
controversy upon the evidence, and therefore
proper for submission to the jury for its deter
mination. The point taken by appellant that
it was not properly and impartially given to
the jury, as q controverted question is not. it
seems to US, supported by any just construc-
ton of the charge, or any portion thereof. The
instructions the court gave in response to the
first and second requests of the defendants,
which are particularly excepted to on this
neither of these requests is the truth of the
facts, as therein stated, unqualifedly assumed
as unquestioned and undisputed; on the con-
trary such facts are clearly only alphabetically
stated, as basis upon which to predicate the
legal propositions themselves as applicable to
the state of facts thus stated and assumed,
there is no room to question their correctness,
either upon principle or authority.
II without any fault of defendants the ties in
question became by plaintiffs act so COM
mingled with those transferred to them, by
delivery acceptance and payment, as to be in
lawful right to take and use from the common
| mass or lot their proportionate share, without
restriction in choice to any particular portion
Of said common lot, provided there was no adj
/ vantage III selection as to quality, value, or
otherwise:
Ryder VS.. Hathaway, q Peck, 248.
Smith VS.. Morrill,. Sc Maine. 566.
Moon VS.. Erie Il. Co., Lansing, SO,
Sims vs. Glazener, IA Alabama sos.
The effect upon plaintiffs legal rights of an
| acceptance by him Of the written order Of de-
| PENDANTS for these ties was correctly stated in
defendants third request and the court COM
mitted no error in giving it to tho jury. 1t is
| admitted that the instructions given in re-
| Spouse to defendants fourth request were
in accordance with the ruling and
views of this court on the
former appeal in this action, wherein the ques-
| ton as to the character of the contracts be-
tween the defendants and Morehead, as con-
struction agent, and The effect of their provis-
ions upon the title to the ties in question, as
between the defendants and the railroad COM
pany, was considered and determined, but we
| are now asked to reconsider that question, on
the ground that the case, as now presented,
| rests upon q different state of facts. Upon ex-
| animation, we are unable to discover any es-
sential difference in respect to any fact or tes-
| timony having any bearing upon the questions
| which were then considered and determined,
and, of course, there is no reason for reconsid-
l cE1uS Iuc u0C1slOu WHICH WAS tleTe maze. lQe
fifth and sixth requests of the defendants and
the instructions given Hereunder, relate to the
rejected ties or ''culls." The exceptions taken
present for consideration, two legal PROPOSE.
tions: 1st, If these ties were not such a,
were called for by any Of the contracts, and de.
PENDANTS never accepted them or agreed to, nc
action upon contract could be maintained
by the plaintiff against the defendants to
recover their value. and I'd, If such
ties through plaintiffs fault became inter.
mingled with the accepted ties belonging tc
the defendants, and We're supposed by him to
remain without any knowledge of the fact on
the part Of The defendants, the latter in the alb.
sence of any demand from the plaintiffs could
not be made liable as for commission for in
nocently and ignorantly taking and converting
them with their own under the supposition
that they were a portion of the accepted ties
which they owed" Both these propositions
were correct. The latter was doubtless irrela-
want under the pleadings, but as no harm could
result it furnishes no ground for new trial
Concerning plaintiffs requests that were re-
fused, the eighth was based upon the erroneous
assumption that delivery upon the line Of the