Titus G. Fish et al., Appellants, v. George Benedict, Sheriff, etc., Respondent

Titus G. Fish et al., Appellants, v. George Benedict, Sheriff, etc., Respondent. (Argued September 20, 1878; decided October 1, 1878.) This was an action to recover possession of certain wagons which had been taken by defendant, as sheriff of the county of Oneida, from the firm of J. B. & M. H. Norton by virtue of an execution against the members of that firm. The wagons had been shipped by the plaintiffs, who comprised the firm of Fish Brothers & Co., from Racine, Wisconsin, to the Nortons, at Utica, upon receipt of a written instrument signed by them and prepared by plaintiffs’ agent, the material portions of which instrument are as follows: “ Utica, N. Y., Oct. 5, 1875. FISH BROTHERS & CO.. RACINE, WIS. You will please ship as per margin below to Utica-, State of New York,-care of self, -for which agree to pay for as stated below. FISH BROTHERS <& Oo. are not responsible for overcharges in freight, injury o>' losses in transit. ii£P“ In case payment of account is not promptly met when due, interest will be added to the amount due at the rate of ten per cent per annum until paid. SST* The signature of the "party giving this order will be sufficient evidence of a full knowledge and acceptance of all the above conditions. “We agree to pay for all wagons sold for cash as soon as sold ; if sold on time we will indorse and forward the notes with interest, and will keep wagons under cover and insured. And do further agree that if any wagons remain unsold twelve months from invoice, to pay for the same and close the consignment. All notes taken for wagons shall become due within said time. The ■ above, wagons to be shipped in one car, and the freight to be not over sixty dollars to Buffalo. “J. B. & M. H. NORTON.” The court directed a verdict for defendant. Held, no error; that the paper was an order for a purchase by the Nortons, and a sale by the plaintiffs, and was not a creation of an agency to sell on commission; that the title to the wagons was transferred to the Nortons, and plaintiffs had no title or right of possession; and that the question as to the interpretation of the instrument was one of law only. Charles H. Searle for appellants. Edwin H. Ilisley for respondent. [MAJORITY] Folger, J., reads for affirmance. All concur, except Milleb and Earl, JJ., absent. Judgment affirmed.