1. Unless objected to within a reasonable time -- and what
constitutes such a reasonable time is a question of law -- an
account rendered becomes an account stated, and cannot be impeached
except for fraud or mistake.
2. A witness was, on cross-examination, asked if he had not
stated to different parties that he wished the plaintiffs to
recover, as he would then get his pay. An objection to the question
was made, and the defendant's counsel then declared that he did not
propose to impeach the witness.
Held that the objection
was properly sustained.
3. A. made a contract with B. to deliver a specified number of
matched barrel headings, to be properly piled on the land of B.,
who was to furnish a man to count them, as they were from time to
time piled, in order to obtain an approximate estimate of the
quantity piled, and thus to determine the amount of advances to A.
under his contract, but the inspection and final count was to be
made by an inspector appointed by B. at a point to which the latter
shipped them. The property in the headings was to pass to B. on the
delivery of them on his land. In a suit to recover the contract
price of
Page 107 U. S. 326
them,
Held:
l. That no error was committed by the trial court in admitting
evidence of the counts by both parties of the whole number of
single pieces of heading, and submitting to the jury the comparison
between them, the court having ruled that the inspector's final
count, which formed the basis of an estimate and average from which
the number of matched headings was deduced, was, if made fairly and
in the exercise of his best judgment, binding on the parties unless
its variance from the actual truth was too great to be accounted
for by mere error of judgment in the matter of matching.
2. That although there was no evidence to show that all the
pieces of heading shipped were in fact delivered at the point to
which they had been sent, the jury were not bound to assume a loss
in transportation in order to account for the discrepancy between
the two counts.
MR. JUSTICE MATTHEWS delivered the opinion of the Court.
This action was originally brought in the state Circuit Court
for the County of Genesee, in Michigan, and removed by the
plaintiff in error, who was defendant below, into the Circuit Court
of the United States for the Eastern District of Michigan. The
defendant in error sued as assignee of Merritt & Helme,
partners as J. J. Merritt & Co., who were assignees of J. J.
Merritt, upon a certain contract entered into between him and the
Standard Oil Company, and subsequent modifications thereof, to
recover a balance alleged to be due thereon on account of the price
of certain headings for oil barrels sold and delivered in pursuance
thereof.
By the original contract, dated October 4, 1873, Merritt,
described as of Lapeer, Michigan, sold the Standard Oil Company
2,000,000 heading suitable for oil barrels, to be sawed 22 inches
in length, full one inch thick on sap, and full one-half inch thick
on the heart edge, and whenever more than two pieces are required
to make a head, the same shall be counted as two; to be delivered
on board the cars at Cleveland, Ohio, on or before March 1, 1875,
subject to the count and inspection of the Standard Oil Company,
who agreed to receive
Page 107 U. S. 327
and pay for the same as fast as inspected at the price of $40
per thousand. Merritt also agreed that full one-half of the whole
amount of the heading should saw full two-pieced heading, and the
Standard Oil Company agreed in that case, and if the other half
were not more than three-pieced heading, they would pay an
additional one dollar per thousand on the whole amount. It was
further agreed that Merritt should have the privilege of drawing,
on sight drafts, for $25 per thousand, through bank, accompanied by
duplicate bill of lading signed by railroad company, as evidence of
shipment, and that the cars should be so loaded as to have a net
value in Cleveland of amount of draft after culling and paying
freight.
This contract was modified by a supplemental agreement of April
1, 1874, Helme then becoming a party to it, by which it was
stipulated that Merritt & Co. should make and deliver the
heading, properly piled on land in Lapeer controlled by the
Standard Oil Company; the latter to furnish a man to count the
heading as nearly as might be from week to week as piled, but not
to inspect it, the object of the count being to obtain an
approximate estimate of the heading thus piled in order to
determine from time to time the amount of advances to be made
thereon, but thereupon the delivery of the heading so counted
should be deemed complete, and the heading should then become the
property of the Standard Oil Company absolutely, Merritt & Co.
being entitled to draw upon certificates of such counts at the rate
of twenty dollars per thousand, on which advances the oil company
were to be allowed interest at the rate of ten percent per annum
until the heading should be received at Cleveland, and also to
charge the cost of insurance thereon to the amount of twenty-one
dollars per thousand, the loss by fire, if any, above that amount
to be borne by Merritt & Co. In all other respects, the terms
of the original contract were to govern.
On May 29, 1874, another modification of the contract was made
which recited that
"through an error made by the inspector employed by said
Standard Oil Company, the said J. J. Merritt & Co. have
received from the said Standard Oil Company money in excess of the
amount"
which, under the contract, they were entitled to receive,
amounting to about $2,500,
Page 107 U. S. 328
and made certain provisions as to the time and mode in which it
should be refunded, but otherwise left the contract unchanged.
On August 24, 1874, a further modification was agreed to
increasing the amount of the advances to twenty-five dollars per
thousand on the second million of the heading.
The heading was manufactured mostly in 1874, and was piled on
each side of the railroad track, upon land leased for that purpose
by the defendant below, and shipments begun in May, 1875. Testimony
on the part of the plaintiff below was offered and admitted to show
that in loading, an accurate account was made and kept of each car
loaded, of the number of the car, the line to which it belonged,
and the number of pieces in each car, and that there were 391
carloads, containing in all 2,691,660 single pieces.
After the first four carloads had been shipped through, all
rail, an arrangement was made between the parties by which the rest
of the heading was to be sent by rail from Lapeer to Detroit, a
distance of sixty miles, and thence by vessel to Cleveland. These
first four carloads by rail and the first cargo by vessel were
counted and inspected by the defendant below at Cleveland, and
returns of the result made to Merritt & Co. These returns
showed the number of matched headings and the number of single
pieces rejected, on inspection, as deficient in size and quality,
called "culls;" and it appearing that these were but a small
portion of the whole, it was then agreed that if Merritt & Co.
would cull before shipment as closely as they had done in these
shipments, the defendant would not cull any more at Cleveland, but
would merely match and count the matched heads.
Evidence was offered on the part of the plaintiff below and
admitted to prove that the subsequent deliveries were equal on an
average with these shipments as to quality and size, and that,
calculating the entire quantity by this comparison, it would show a
delivery of 263,303 matched headings, more than had been accounted
for, which at forty dollars per thousand, amounted to
$10,532.12.
It was in evidence on the part of defendant below that
Page 107 U. S. 329
on receipt of the heading at Cleveland, it was inspected by
their inspector. This inspector, being called as a witness,
testified that he actually matched the whole of the first cargo as
it was counted and inspected, but the rest by only averaging from
samples -- that is, he laid off and piled up a thousand pieces, and
arrived at the matching by seeing how many pieces it took to make
the number of inches, and made an average from that. The whole
number of pieces, as taken by the teamsters, were reported to him,
of which he made a record, and then reduced it to matched heading,
which he reported to the company. The number of single pieces, in
gross, was 2,296, 160, making of matched heading 1,958,539 pieces.
This, he said, was the usual mode of counting and matching.
It was admitted on the part of the defendant below that in going
carefully over the inspector's calculations, errors had been
discovered in computation, twenty-five in number, some in favor of
and some against the company, and resulting in a balance of $144.34
against them, for which they admitted their liability.
On the basis of the count of their inspector, the Standard Oil
Company rendered to Merritt & Co. an account, dated August 20,
1875, showing a credit balance of $542.54. That balance was paid
and accepted, and no objection made to the statement of the
account, until the bringing of this suit, January 10, 1876. One
carload of heading was shipped after the close of that account, and
was accounted for September 25, 1875.
There was other evidence on each side which it was claimed
tended to establish the accuracy of the counts, respectively, made
at Lapeer and at Cleveland. There was no evidence bearing upon the
question of any loss of heading between Detroit and Cleveland, but
it did appear in evidence that when the heading was loaded in
Detroit, upon vessels, bills of lading were made and delivered to
the captains of the boats, showing the number of carloads of
heading on each vessel, which bills of lading were, upon the
arrival of the vessels in Cleveland, delivered to the defendant
below at its office, when freight was paid thereon and charged to
Merritt & Co., the bills of lading being retained by the
Standard Oil Company. There was no evidence tending to impeach the
good faith of
Page 107 U. S. 330
the count on either side or that the inspector of the defendant
below was not a competent person for the business entrusted to
him.
The court charged the jury in substance that by the terms of the
contract as modified on April 1, 1874, the heading became the
property of the Standard Oil Company on delivery at Lapeer on land
leased by it, but subject to their inspection and count at
Cleveland; that if that count was made fairly and in the exercise
of the best judgment of the inspector, it would be binding on the
plaintiff unless its variance from the actual truth was too great
to be accounted for by any error of judgment, in which case the
plaintiff was not precluded from showing a mistake; that if upon
all the evidence the jury should be unable be determine whether
there was fraud or mistake in the count upon either side, or if,
upon being satisfied that there had been fraud or mistake, they
were unable to determine which party is responsible for it, they
must find for the defendant except as to the small amount admitted
to be due. And the jury was also instructed that the count and
inspection, so far as it involved the culling or rejection of
defective pieces and matching, so as to determine how many single
pieces were required to make a matched heading, according to the
contract, was a matter of judgment on the part of the inspector,
which, if honestly exercised, would be binding, and that,
consequently, the proof of mistake upon the case, as it rose upon
the evidence, was confined to the count of the whole number of
single pieces, and the consequent error, if such were proved, as to
the number of matched headings; although the defendant company was
not bound by the contract to make a gross count to determine the
whole number of single pieces, or to keep any memorandum or
estimate of any such gross count, or to make return thereof to
Merritt & Co., its duty being performed if it handled all the
heading delivered to it, and honestly and correctly counted it in
such a way as determine the number of complete heads.
As to the account stated and rendered, the court charged the
jury in effect that the account having been rendered in September,
1875, and no objection having been made until January, 1876, by the
bringing of the suit, it had been kept such a
Page 107 U. S. 331
time as made it an admission on the part of Merrit & Co. of
its correctness, but that the plaintiff was not estopped from
showing fraud or mistake in it, which, however, should be made
clearly to appear, the burden of proof resting upon the plaintiff
to establish it.
Various exceptions were duly taken to the rulings of the court
in the admission of evidence, in refusing to instruct the jury as
requested, and to the charge as given, which, so far as necessary,
will be referred to in their order. A verdict was returned in favor
of the plaintiff below for $7,688, and judgment rendered thereon,
which the defendant below now brings into review upon this writ of
error.
1. It is objected by the plaintiff in error in the first place
that the court erred in admitting evidence as to the counts by both
parties of the whole number of single pieces of heading, and
submitting to the jury the comparison between them, as furnishing
any means of establishing error in the count of matched headings.
It is argued that the count of gross pieces was not recognized by
the contract, as it contemplated only a count of matched headings,
and that, as this involved culling the bad from the good, and the
matching of single pieces to constitute the heading required by the
contract, and then only a count of the number of the latter, the
process involved, at least in two of its steps, the exercise of
skill and judgment, and made it necessary, if mistake was relied
on, to show directly that it had occurred in the actual count of
matched headings.
But, as we have already stated, the culling had been dispensed
with after the first four cargoes, and the matching, as testified
to by the inspector, was made upon an estimate based upon a few
experiments, according to which, upon an average, the whole number
of single pieces was reduced to matched headings. It did become
necessary, therefore, for the inspector to make a count of the
single pieces as the means of arriving at the number of matched
headings. It was also contemplated by the contract that a count of
single pieces should be made at Lapeer by a counter, also appointed
by the defendant below, for the purpose of determining the amount
of advances to which Merritt & Co. were entitled, and although
this count was not
Page 107 U. S. 332
the final and conclusive one, it was quite legitimate to use it
in comparison with that made at Cleveland, as one mode of testing
the accuracy of the latter. And this comparison was justified by
the evidence, also objected to, that in those particulars which
might affect the ratio of single pieces to matched headings, such
as size, quality, etc., the early cargoes, in respect to which that
ratio had been determined by actual inspection and count, averaged
no better than all subsequent deliveries. It furnished to the jury,
quite fairly and consistently with the intent of the parties to the
contract, a means of determining whether there had not been a
mistake in the last count, properly limited by the court in the
rule that the discrepancy must be so great as that it could not
reasonably be accounted for by any mere variation of judgment in
the matter of matching.
It is admitted by counsel for plaintiff in error, and such
undoubtedly is the law, that the count of the inspector at
Cleveland was subject to impeachment for fraud or mistake, the
mistake being not a mere alleged error of judgment, but one of fact
which prevented the proper exercise of his judgment. Such was the
character of the mistake to which the evidence was directed, namely
a mistake in counting the number of single pieces, which formed the
basis of an estimate and average from which the number of matched
heading was deduced. The objection seems to be directed to the mode
of proof, it being insisted that it should be direct evidence of
the fact of a mistake, independent of the evidence of its amount.
But we are not aware of any rule of law which requires any
particular method of proving such a fact, differing from that
required to prove any similar fact. Whatever naturally and
logically tends to establish it is competent evidence. If a
stranger had stood by at Cleveland and, following the inspector in
his count of single pieces, had detected him in error, which would
necessarily affect the final count of matched headings, he would
thereby have been a competent witness to prove the discrepancy.
Proof of a similar count at Lapeer would differ only in degree, and
not in quality, as evidence to the same effect.
It is suggested, however, in reply to this that in the latter
case, an indispensable link in the chain necessary to connect
Page 107 U. S. 333
the count at Lapeer with that at Cleveland is wanting because it
is admitted that there was no evidence to show that all the pieces
of heading shipped at Lapeer were in fact delivered at Cleveland,
and for aught that appears, the quantity of the apparent difference
may have been lost in transportation between the two places. But
whether this was so probable as to more reasonably account for the
discrepancy than the supposition of an error in one or both counts
was a matter for the consideration of the jury. They were not bound
to assume a loss in transportation in the absence of any evidence
on the subject, and were entitled to assume that the shipments
arrived at their destination undiminished, in the absence of any
reason to the contrary, especially in view of the fact that there
had been no complaint from any quarter that the number of carloads
called for by the bills of lading was not verified, or that more
freight had been charged and paid than would be due if there had
been a deficiency.
But independent of this, and on the assumption that the whole
amount of the discrepancy between the two counts could be accounted
for by an actual loss in transportation, the case of the defendant
below would not have been strengthened. Although the count was to
be of matched headings, and at Cleveland, and conclusive in the
absence of fraud or mistake, nevertheless by the modified contract
of April 1, 1874, the delivery of the heading took place at Lapeer,
so as to pass the property in the heading absolutely to the
Standard Oil Company. And as the risk follows the title, any loss
that subsequently accrued by nondelivery on the part of the
carriers would be the loss of the defendant below, and the
plaintiff would be entitled to recover the contract price on proof
of the quantity of single pieces reduced to matched headings,
delivered at Lapeer, upon the best evidence that could be adduced
under such circumstances, although they could not be actually
counted and matched at Cleveland, as required by the terms of the
contract.
2. It is next objected by the plaintiff in error that the court
below erred in its rulings upon the account offered and admitted in
evidence, and which it was claimed was a stated account. The claim
on this part of the case is that an account rendered
Page 107 U. S. 334
becomes an account stated unless objected to within a reasonable
time; that what constitutes a reasonable time in such a case is a
question of law, and that an account stated cannot be impeached
except for fraud or mistake, and in support of these propositions
counsel cite
Perkins v.
Hart, 11 Wheat. 237;
Toland v.
Sprague, 12 Pet. 300;
Wiggins v.
Burkham, 10 Wall. 129;
Lockwood v. Thorne,
11 N.Y. 170, and other cases.
There is no dispute but that this is a correct statement of the
law, and it is precisely what was charged by the circuit court, and
in the very language of instructions asked for by the plaintiff in
error. The court followed it up by adding also that the lapse of
time from September, 1875, when the account was rendered, to
January, 1876, when the suit was begun, without objection,
converted it into a stated account, which could be impeached only
for fraud or mistake. But the same evidence which sufficed to
establish a mistake in the count at Cleveland on the part of the
inspector also impeached the account, for it was founded on that
count and embodied its mistake.
3. It is further alleged as error that the court refused to
instruct the jury, as requested by plaintiff in error, that "this
cause is based upon the ground of either fraud or mistake, and
there is no evidence of any kind, except the two counts," referring
to the number of headings delivered,
"and if the jury find a verdict for the plaintiff, they must
find a verdict for the entire amount. Either the defendant is
liable for this entire amount or it is not liable except for the
small sum admitted."
This request was very properly denied by the court. There is no
rule of law that limits, in such a manner, the discretion of the
jury in dealing with the evidence on a question of damages in such
a case. The very spirit of trial by jury is that the experience,
practical knowledge of affairs, and common sense of jurors may be
appealed to to mediate the inconsistencies of the evidence and
reconcile the extravagances of opposing theories of the parties.
There was nothing illogical in the present case in the verdict of
the jury, proceeding upon the supposition of possible errors in
both counts and making probable allowances for their amount,
although no mathematical calculation could be made to demonstrate
the exact accuracy of the result.
Page 107 U. S. 335
But even if the ruling was erroneous, as alleged, it is
difficult to understand how it could have prejudiced the plaintiff
in error. The argument presupposes that the evidence justified a
verdict for the larger amount, and establishes merely that it was
for less than it might properly have been. Whatever error was
committed in this respect was certainly not to the prejudice of the
party complaining.
One of the witnesses for the plaintiff below, on
cross-examination, was asked this question:
"Have you not recently stated to different parties, in talking
about the matter, that you wanted them to recover here, because you
would then get your pay?"
The plaintiff's counsel objected to the question on the ground
that it did not specify time and place, to which such suggestion
defendant's counsel replied that he did not propose to impeach the
witness, whereupon the court sustained the objection and to that
ruling an exception was taken.
There is not error in this. If the object was to impeach the
witness by subsequent contradiction, the question was clearly
incompetent as too indefinite. If the design was to impeach the
witness in another mode, as by showing interest or bias, supposing
it to have been competent for such purpose, as to which we express
no opinion, it was the duty of counsel to have accompanied his
disclaimer with that qualification. He must be taken, without such
explanation, to have waived the objection. The disclaimer, in its
general form, was broad enough to cover every form of impeaching
the credit of the witness, and it cannot be narrowed now without
injustice. We have considered all the exceptions of the plaintiff
in error, and find no error in the record.
Judgment affirmed.