Reed v. McDonald

ALLEN, J.

Plaintiff's complaint avers that on February 20, 1900, they bought of defendant a stack of baled hay containing six hundred and fifty tons, more or less, at $8.75 per ton; that it was agreed that until the hay was removed and the true tonnage learned, plaintiffs should pay the contract price therefor to defendant, and when the hay was moved

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and the true tonnage ascertained, if there was more or less than six hundred and fifty tons, the excess or deficiency should be adjusted between the parties at the selling rate per ton. The plaintiffs paid the price based on the estimate. Afterwards, on February 1, 1901, plaintiffs allege that they completed the removal of the hay and ascertained that the stack contained but four hundred and seventy-one tons, plus, which deficiency, at the rate named, amounted to $1,563.20. Defendant denies that the removal of said hay was ever completed, or any ascertainment was ever had that said stack contained four hundred and seventy-one tons, plus, only; and alleges further that at the date of the commencement of the action, and long prior thereto, the hay.had been sold to and was the property of others not parties to the action, who were and still are living.

Findings and judgment for plaintiffs, and from the judgment and order denying a new trial defendant appeals.

It appears from the evidence that possession of the hay was delivered to the purchasers at the date of the purchase, and that the purchasers caused the same to be insured in their names and returned the same for tax-assessment as their property. Although, at the time of the sale, they returned the keys of the corral in which the hay was situate to the seller, he was to deliver the same upon the purchasers’ request to those whom they might desire to remove the hay. It further appears that plaintiffs commenced the removal of the hay about March 1st, under an agreement with the seller (whether in harmony with the written agreement or not does not appear from the record) that the weights should be determined by reference to tags placed in each bale by the baler; and under this arrangement plaintiffs removed three hundred seven and one quarter tons, the weights of which, it is shown, were satisfactory to all parties; plaintiffs having on the day of their purchase sold three hundred tons of the hay to one De Groot, who, after the removal of the hay above specified, employed a man named Loveland to remove and ship his three hundred tons of hay. There is testimony offered by plaintiffs tending to show that De Groot and plaintiffs had a conference with defendant before De Groot commenced the removal of the hay, at which it was agreed that, instead of De Groot weighing and determining the weights