Healy v. Utly , 1 Cow. 345 ( 1823 )

Savage, Ch. J.

The boundary, which separates the powers and duties of Courts and Juries, has long been well defined. The jury are to ascertain and determine any facts which are disputed ; the Court are to pronounce the law upon those facts. The facts established in this case, beyond dispute, are the contract between Utly and Spotswood for the oars, the agency of Spotswood, the delivery of the oars by Utly, and the receipt of them by Spotswood, at Coteau de Lac. Had the evidence closed here, there would be no doubt about the plaintiff’s right of recovery. The important question then is, has he divested himself of that right ? Spotswood told Utly, at the Cedars, that he had been disappointed in procuring money, and could not pay for the oars ; and that he (Utly) must do the best he could with them. What reply Utly made does not appear; but, at Montreal, he took the oars in question from Spotswood’s raft, and sent them by Mr. Herrick to Dr, Man, at Quebec, to be sold for his (Uthfs) benefit. He calls them his oars, in the receipt and order on Herrick, for the proceeds of the sale. These facts are equally undisputed. A question of law, then, arises for the Court to decide, viz. whether the declaration of Spotswood, and the subsequent taking the oars from the raft, and disposing of them for Utly's benefit, he treating them distinctly as his own, are not full evidence of a re-sale of the oars by Spots-wood to Utly. In my opinion they are, even independent of the receipt and order ; and that the plaintiff shewed no right to recover : that it was the duty of the Court below so to have decided : and that, of course, the plaintiff should have been nonsuited. I think this case clearly distinguishable from Sands & Crump v. Taylor & Lovett, relied upon by the defendant’s counsel. In that case, the defendants, after receiving part only, of the wheat sold, refused to take the residue, and the plaintiffs were, of necessity, compelled to dispose of it. But in this case, the entire subject of the contract roas delivered. It was perfectly optional with Utly, whether he would take back the oars or not; and his doing so can be accounted for, upon no other principle, than the intention to re-purchase them in payment of his debt, or to rescind the contract, upon the alledged inability of Spotszoood to pay for them.

I am accordingly of opinion, that the judgment must be reversed, and a venire de novo awarded.

Sutherland, J.

It was in evidence, .¿bat after the oars were delivered to Spotszoood, and were on their way to Montreal, and when Utly was entitled to his pay for them, Spots-•mood told him he could not pay him, and that he must take the oars, and do the best he could with them. He, accordingly, accompanied the raft and oars to Montreal, and there delivered them to Herrick, to take to Quebec, to Dr. Man, to be sold on Utly^s account. There was no evidence of payment being demanded for the oars, at Montreal, either of Healy or Spotszoood, or of any notice, to either of them, that the plaintiff would sell the oars on their account, and hold them responsible for the difference between the price agreed to be given by Spotszoood, and that at which they might sell.

Upon this evidence, the defendant moved for a non-suit, on the ground of its being apparent that Utly con-" sidered the contract with Spotszoood rescinded, and treated, and disposed of the oars, as his own.

I think the nonsuit ought to have been granted. It is perfectly clear that Utly, on his arrival at Montreal, considered the contract at an end, and the oars as his own. And, on the authority of the cases of Pratt v. Hull, (13 John. Rep. 334) and Foot v. Sabin, (19 John. 154) the refusal to grant the nonsuit was error, for which the judgment must be reversed, and a vemire de novo awarded, returnable in this Court.