
    Decided 20 November, 1899.
    SIMONDS v. WRIGHTMAN.
    [58 Pac. 1100.]
    1. Construction op Contract. — A contract made by the acceptance of the terms of a letter, wherein the writer proposes to ship hops to another, obtained by the former from the growers, and to draw sight drafts therefor on the latter, and states that his “offers and your orders are good for 24 hours, unless otherwise stipulated,” shows that the former is an independent dealer, and not the latter’s agent to purchase hops.
    2. Instruction — Construction op Writing. — Where the relation between parties is evidenced by an undisputed writing, the court should instruct the jury as to the scope and effect of such relation — as, where an acknowledged letter shows that certain persons did not sustain toward each other the relation of principal and agent, it is the duty of the judge to peremptorily so state to the jury, and not to leave that question of fact for their consideration at all: hong Creek Bldg. Assoe. v. Slate Ins. Co. 29 Or. 569, applied.
    3. Replevin — Variance—Ownership op Plaintipp’s Grantor. — In a replevin action it is not permissible to deny that a certain person ever owned the articles in question and then prove title through that person — to do so would be a clear variance between the pleadings and proofs, and to the prejudice of the adversary: Hill v. Mellon, 3 Or. 542, cited.
    4. Replevin — Pleading! Date op Ownership. — A replevin complaint must show the ownership and right to possession of the chattels in question at the time of commencing the action: Kimball v. Bedfteld, 33 Or. 292, followed.
    From. Marion : George H. Burnett, Judge.
    Action by Henry A. Simonds and another, as partners under the firm name of F. W. Simonds & Son, against Frank T. Wrightman, sheriff. Judgment for plaintiffs, and defendant appeals.
    Reversed.
    For appellant there was a brief over the names of Wm. Hi. Kaiser and Woodson T. Slater.
    
    For respondents there was a brief over the name of Holmes & Kellogg.
    
   Mr. Justice Moore

delivered the opinion of the court.

This is an action to recover the possession of one hundred and seventy-three bales of hops, or their value in case possession thereof cannot be had. The answer, after denying the material allegations of the complaint, avers that, an action having been commenced in the Circuit Court of Marion County by Kola Neis against Phil Neis, to x’ecover the sum of $2,134.70 and interest and attorney’s fees, a writ of attachment was duly issued therein, in pursuance of which the defendaxxt, as sheriff of said county, seized said hops as the property of the defendant in said action. The x’eply having denied that Phil Neis, on that or on any other day, or at all, was the owxxer or in possession of said hops, a txial was had, resulting in a judgment for plaintiffs, and defendant appeals.

It is contended by defendant’s counsel that the court erred in permitting plaintiffs, over their objection and exception, to introduce evidence tending to controvert their reply, and in refusing to give an instruction asked by defendant to the effect that, under the pleadings, plaintiffs could not claim title to the hops by direct purchase from Phil Neis & Company. The bill of exceptions shows that Phil Neis was engaged in the hop business under the name of Phil Neis & Company, and, having secured samples of hops from various growers, he numbered and sent them to plaintiffs, who were hop merchants doing business at No. 18 South William Street, New York; that with such samples was one numbered 24, representing hops grown by G. Storts and Wong Tong, near Townsend, a station in Marion County on a branch of the Southern Pacific Railroad; that on October 19, 1896, Phil Neis sent to plaintiffs from Salem a cipher telegram, the translation of which, as far as applicable to the case at bar, reads as follows: “We offer No. 24 at 9# cents, New York, for immediate answer. ’ ’ On the following day he received from them a message, the translation of which is as follows : “Sample No. 24, we accept your offer, 9f cents.” Neis immediately telephoned his agent at Woodburn to buy said hops, consisting of one hundred and seventy-three bales, at 7-J- cents per pound, which the latter did, paying on account thereof the sum of $1, and agreeing to pay the remainder of the purchase price on October 24, 1896, when the hops were to be weighed and received ; that on the day so agreed upon the hops were inspected, and two days thereafter, Storts and Wong Tong having placed all but seventeen bales in cars, Neis paid them the remainder of the purchase price from his own funds, and left them a receipt, to be signed by an agent of the railroad company, to the effect that “Phil Neis & Co., consignor, shipped said hops to Phil Neis & Co., consignees, New York City. Notify F. W. Simonds & Son.” Neis also, on the same day, mailed to plaintiffs the following invoice:

Salem, Oregon, Oct. 26, 1896.

Messrs. F. W. Simonds & Son, Bought of Phil Neis & Co., Hop Merchants.

173 bales Oregon hops, identical lot, sample No. 24, 31,873 lbs. net, @ 9f c________ $3,067 77

Less freight, 33,084 lbs. gross, @ li c------ 496 26

$2,571 51

The defendant, as sheriff of said county, on October 28,1896, attached said hops as the property of Phil Neis, who thereafter made an affidavit and executed an undertaking, thereby securing possession of the attached property, which he sold, and retained the proceeds. It also appears that plaintiffs have never received the shipping receipt, nor paid any sum whatever on account of the purchase of the hops.

The method of doing business which existed between plaintiffs and Phil Neis is shown by the following letter :

“Phil Neis & Co.,

Hop Merchants.

Seattle, Wash., Sept. 13, 1893.

Mr. F. W. Simonds & Son,

18 South William Street, N. Y.

Dear Sirs : Since our last respects of the 11th inst., we received your favor of the 5th inst. Contents noted, with thanks. We could have offered you 200 bales of Oregon hops at less than figures 22 cts., delivered there, equal and similar to sample No. 1, which we mailed you to-day, but we did not consider them the right quality for the English market. We know exactly what quality you desire. All our offers and our orders will be delivered New York, but only cost and freight, as the railroad company guaranties delivery of hops. No one insures shipping from the coast points east. Nevertheless, if you wish insurance, we will insure. Washington hops are shipped by either Northern Pacific R. R. or Great Northern via St. Paul, and go through within fifteen or sixteen days from date of shipments. We always ship Oregon hops to New York via Southern Pacific and Sunset Route to New Orleans, and from New Orleans via steamer to New York. The Sunset Route carries the risk of marine insurance between New Orleans and New York. Shipments also go through on this route within 15 or 16 days from coast to New York. In shipping to you, we will do the same as with all our customers — draw sight drafts, shipping documents attached. We draw one sample from every ten bales, representing the average quality of shipment, which we will mail to you. Our offers and your orders are good for 24 hours, unless otherwise stipulated. We guaranty the quality of shipments, either by samples or as offered by us. In case of dispute, the question to be settled by arbitration. Nothing will be left undone on our part to give you full satisfaction, and we hope that we will be able to do a large business with your firm. Will mail you samples as soon as hops are baled. Freight from here to New York is $2.20 per 100 lbs.

Yours, faithfully,

Phil Neis & Co.”

This letter and the telegrams mentioned evidence the agreement entered into between plaintiffs and Phil Neis & Company, with reference to the hops in question. The letter states that, in shipping hops to plaintiffs, Phil Neis & Company would pursue the course which they had adopted in dealing with all other customers, viz., draw sight drafts, and attach them to the shipping documents. The language of the letter, “Our offers and your orders are good for 24 hours, unless otherwise stipulated, ’’ shows that Phil Neis & Company were not plaintiffs’ agents, but independent dealers, who purchased hops from the growers on their own account, whenever they could find buyers therefor in the Eastern markets.

The agreement for the sale of the hops and the method of dealing which existed between plaintiffs and Phil Neis & Company being evidenced by writings about which there is no controversy, it was the duty of the court to say to the jury, as a matter of law, that Phil -Neis & Company were not the agents of plaintiffs in the purchase of the hops in controversy : Mechem, Ag. § 104; 1 Am. & Eng. Enc. Law (2 ed.), 967; Long Creek Bldg. Assoc. v. State Ins. Co. 29 Or. 569 (46 Pac. 366); London Sav. Fund Soc. v. Hagerstown Sav. Bank, 36 Pa. St. 498 (78 Am. Dec. 390).

This brings us to a consideration of the question whether plaintiffs, after having denied in the reply that Phil Neis & Company were ever the owners of the hops, could be permitted to controvert such averment by introducing evidence, over defendant’s objection and exception, tending to show that they purchased them from Phil Neis & Company, whom they,alleged were never the owners thereof. It is a primary rule that evidence, to be admissible, must correspond with the allegations, and be confined to the point in issue : Hill’s Ann. Laws, § 704; 1 Greenleaf, Ev. § 51. If the variance between' the allegation in a pleading and the proof have actually misled the adverse party, to his prejudice in maintaining his action or defense upon the merits, such variance is material, and error can be predicated thereon if objection be made at the proper time, distinctly specifying the grounds thereof : Hill’s Ann. Laws, § 96 ; Hill v. Mellon, 3 Or. 542; Davidson v. Oregon & Cal. R. R. Co. 11 Or. 136 (1 Pac. 705). The bill of exceptions shows that defendant objected to the introduction of the evidence complained of because it “contradicted the allegations and admissions of plaintiffs in their pleadings,” and, such objection having been properly made, the court erred in not giving the instruction requested by defendant, and also in charging the jury as follows : “And the plaintiff’s may prove the title to these hops, either by direct purchase from the original growers, through their agent, — that is, the agent of the plaintiff’s, — or they may prove that they purchased them direct from Phil Neis & Co.” It must be admitted that, if plaintiffs thought the facts warranted it, they had the right to adopt the theory that Phil Neis & Company were their agents in the purchase of these hops, and, under the maxim, “Qui facit per alium facit per se,” contend at the trial that the delivery of the hops by the growers to their agent immediately vested the title in them. But, having adopted such theory, they are precluded from changing it without an order of the court permitting them to amend their reply; and if, upon the condition of the pleadings and the evidence submitted, a motion for a judgment of non-suit had been interposed, or if the court had been requested to instruct the jury to find for the defendant, error could undoubtedly have been predicated upon its refusal. It is maintained by plaintiffs’ counsel that, having alleged in the complaint that their clients were the owners and entitled to the immediate possession of the hops at the time they were attached, it is immaterial whether their title was derived from the growers or from Neis. Issues are formed by the pleadings to inform parties of the nature of the primary right alleged to be involved, and to enable them to prepare for trial. The denial in the reply advised defendant that plaintiffs expected to maintain their cause of action upon the theory that Neis was their agent, and it must be inferred that defendant, acting upon such advice, prepared to meet that issue. If, at the trial, plaintiffs had changed their theory by securing an amendment of their pleading so as to allege a purchase from Neis, the defendant, by reason of the surprise, could have moved the court to postpone the trial, and, if a continuance were refused, might have assigned such action as error, and th,e question upon an appeal in such case would be as to whether the court had abused its discretion ; but, until such contingency arose, the defendant’s objection and exception to the introduction of the evidence, in consequence of the variance, and his request for the court to give the instruction alluded to, were sufficient to render the allegation of the reply material.

Another question, which is not assigned as error in the notice of appeal, is the fact that the complaint was filed November 5, 1896, and it is alleged therein that on October 26,1896, plaintiffs were the owners and entitled to the possession of the hops; that on the latter day defendant unlawfully took them from their possession; and that on November 2,1896, plaintiffs demanded of defendant the possession thereof, notwithstanding which he unlawfully detains them. It is not alleged in the complaint that plaintiffs were entitled to the possession of the hops at the time the action was commenced, and under a similar allegation it was held that the complaint must show a right to the immediate possession of the chattels (Kimball v. Redfield, 33 Or. 292, 54 Pac. 216); but whether such defense was aided by the verdict it is not necessary to determine, since permission can probably be secured in the lower court to amend the pleading in this respect, and also to. strike out the denial that Phil Neis ever was the owner or in possession of the hops. It follows that the judgment is reversed, and a new trial ordered.

Reversed. 
      
       “Whatever act you by another do, The law will hold that act was done by you.” .
     