Garfield v. Paris
ERROR to the Circuit Court of the United States for the Eastern District of Michigan.
This was an action by Paris, Allen, & Co., of New York, against Garfield & Wheeler, of Detroit, Mich., to recover for certain spirituous liquors sold to the defendants by the plaintiffs, in the city of New York.
The facts are stated in the opinion of the court.
Verdict and judgment for the plaintiffs; whereupon the defendants sued out this writ of error.
Mr. Henry M. Duffeld for the plaintiffs in error.
The admission of the evidence concerning the labels, which were not mentioned in the bill of particulars, was erroneous.
'The office of a bill of particulars is to inform the opposite party of the causes of action to be relied upon on the trial, which are not specifically set out in the declaration.' Bosworth, J., in Bowman v. Earle, 3 Duer (N. Y.), 694; Davis v. Freeman, 10 Mich. 188. The plaintiff will be confined to the items it contains. 2 Archb. Pr. 222; 1 Tidd, Pr. 599; Williams v. Sinclair, 3 McLean, 289. When furnished, it is deemed part of the declaration. Starkweather v. Kittle, 17 Wend. (N. Y.), 20. The plaintiff must be confined to the particulars he has specified, as closely and effectually as if they constituted essential allegations in a special declaration. Commonwealth v. Giles, 1 Gray (Mass.), 469; Commonwealth v. Snelling, 15 Pick. (Mass.) 321. Plaintiff will not be allowed to establish his claim in a manner different from that in which he has elected by his bill of particulars to consider the defendant his debtor. De Sobry v. De Laistre, 2 Har. & J. (Md.) 191.
If the sale of the liquor was a Michigan contract, it was void under the prohibitory liquor law of that State, and the plaintiffs cannot recover. Myers v. Carr, 12 Mich. 63; Roethke v. Philip Best Brewing Co., 33 id. 341; In re Paddock, 6 Nat. Bank. Reg. 132.
The sale was not made in the State of New York, unless there consummated. The delivery of the labels to one of the plaintiffs in error was not a receipt and acceptance of part of the goods sold. These labels were not invoiced; no price was put upon them; no given amount or number of them was agreed to be furnished; nothing was added to the price of the whiskey on account of them. They are not proven to be of any value. The receipt and acceptance by the buyer must be such as completely affirms the contract. Heath, J., in Kent v. Huskinson, 3 Bos. & Pul. 223.
It must appear that the vendor has parted with the possession of the goods, and placed them under the control of the purchaser, so as to put a complete end to all the rights of the unpaid vendor, as such. Gray v. Davis, 10 N. Y. 285; Messer v. Woodman, 22 N. H. 172; Addison, Contr. 113, note 3. It is not enough that the buyer should have taken a part of the goods in his possession, Browne, Stat. Frauds, sect. 326; nor have taken out a sample, German v. Boddy, 2 Car. & Kir. 145; nor even examined the whole lot delivered, for the purpose of ascertaining the quantity or quality, Baylis v. Lindy, 4 L. T. N. S. 176; even though the lot be injured thereby, Curtis v. Pugh, 10 Ad. & E. 111; Elliott v. Thomas, 3 Mee. & W. 170.
A case somewhat resembling this is decided against the validity of the contract, in Delventhal v. Jones, 53 Mo. 460. And the later decisions have firmly laid down the important and true principle that there can be no acceptance and receipt affirming and binding the contract, so long as the buyer has the privilege of returning the goods as objectionable in quantity or quality. Hanson v. Armitage, 5 Barn. & Ald. 557; Howe v. Palmer, 3 id. 321; Acebal v. Levy, 10 Bing. 376; Nicholle v. Plume, 1 Car. & P. 272; Norman v. Phillips, 14 Mee. & W. 277; Smith v. Surnam, 9 Barn. & Cress. 561; Coats v. Chaplin, 3 Add. & E. N. S. 483; Jordan v. Norton, 4 Mee. & W. 155. And see, to the same effect, Shindler v. Houston, 1 Comst. (N. Y.) 261; Outwater v. Dodge, 6 Wend. (N. Y.) 400; Lloyd v. Wright, 25 Ga. 215; Spencer v. Hale, 30 Vt. 314; Maxwell v. Brown, 39 Me. 98; Shepherd v. Pressy, 32 N. H. 49; Coombs v. Bristol & Exeter Railway Co., 3 H. & N. 510; Rogers v. Phillips, 40 N. Y. 519.
Can it be seriously urged, that, by merely allowing the labels to be sent to the hotel of one of the plaintiffs in error, in New York, they thereby precluded themselves from objecting that the liquor afterwards furnished was not what they purchased? Could the plaintiffs have compelled defendants to take any liquors they might choose to ship, because Wheeler, while in New York, had accepted a few labels? Or, on the other hand, can it be claimed that the defendants in error, by delivering the labels, had lost their right of stoppage in transitu, in case the other party became insolvent?
The court declined to hear counsel for the defendants in error.
MR. JUSTICE CLIFFORD delivered the opinion of the court.