
    Glass et al. v. Gelvin, Appellant.
    
    1. Delivery: question of law or fact. When there is no dispute as to the facts, the question of delivery is one of law, but where there is a conflict in the evidence it isa question of fact for the jury.
    2. Possession: vendor: vendee: agent. A vendor may sell goods in the possession of his agent or bailee, and transfer a valid title; the possession of the agent then becoming the possession of the vendee.
    3. Recovery: pleading: instruction. Recovery can only be had upon the case made by the pleadings. The issues cannot be changed by an instruction.
    
      Appeal from Molt Circuit Court. — Host. H. S. Kelley, Judge.
    Reversed.
    
      
      T. H. Parrish for appellant
    There was no such deliyery as would excuse the plaintiffs from furnishing the number of hogs sold at the time they were to be weighed, and the instructions of the court upon that point were erroneous. Williams v. Evans, 89 Mo. 202; Means v. Williamson, 87 Me. 556; Howdlett v. Toll-man, 14 Me. 400. As a general rule the seller is bound to deliver the exact quantity contracted for. If more or less is tendered, the buyer may refuse to accept any. Hart v. Mills, 15 M. & ~W. 85; Cundiff v. Harrison, 6 Exch. 903; Rommel v. Wingate, 103 Mass. 327; Rockford R. R. Co. v. Lent, 63 Ill. 288; Wilson v. Wagner, 26 Mich. 452. Until Eisher was notified of the contract, he held the hogs as bailee of plaintiffe. Harvy v. St. Louis Butchers, etc., 39 Mo. 208, 218 ; Upton v. Jamison, 73 Mo. 234; Benjamin on Sales, p. 672, note a; Russell v. O’Brien, 127 Mass. 348; Carter v. Willard, 19 Pick. 1; Bullard v. Wait, 16 Gray 55; McCormick v. Hadden, 37 Ill. 370. The court erred in submitting the case to the jury upon other issues than those made in the pleadings. Bullene v. Smith, 73 Mo. 151; Price v. Railroad Co., 72 Mo. 414; Bank v. Murdock, 62 Mo. 70; Bank v. Armstrong, 62 Mo. 59; Waldhier v. Railroad Co., 71 Mo. 514. If the facts charged in the petition were true, plaintiffs’ remedy was an action for the contract price of the hogs, and they cannot recover for a failure of defendant to accept. Chapman v. Ingram, 30 "Wis. 290; Hart v. Tyler, 15 Pick. 171; Story on Sales, § 441; Benjamin on Sales, § 764.
   Ewing, C.

Respondents sued the appellant in the circuit court of Holt county, and alleged in substance that: They were partners and stock dealers, and shipped to Chicago 345 head of fat hogs to one Eisher, a commission merchant, who was to sell them for plaintiffs; that Glass, one of the plaintiffs, went to Chicago, and after negotiation, sold them to defendant, Gelvin, for $4.60 per hundred, and a part of tbe contract of sale was, tbat defendant was to receive tbe bogs in EisheEs bands, and was to make Eisber bis agent and to pay all charges; tbat tbe plaintiffs delivered and defendant received’the bogs in Eisber’s bands, and gave bim instructions for their sale. Tbat defendant refused to pay for tbe bogs, but abandoned them, and that Eisber, as defendant’s agent, sold tbe hogs for the best price be could, and after paying all charges, (stating tbe amount,) then paid tbe remainder, $3,370.39, to plaintiffs, leaving a balance due them of $724.53. Tbe answer was a general denial.

The evidence, on tbe part of plaintiffs, tended to prove tbat when tbe sale was made, about nine o’clock in tbe forenoon, Glass and Gelvin went to tbe stock-yards, and tbe bogs were all there, but Eisher was not; tbat they returned about eleven o’clock and found Garrett, Eisber’s salesman, in tbe pens; told bim tbe bogs were sold to Gel-vin ; tbat Garrett then said to Gelvin, “ Then I may consider myself acting under your orders,” and Gelvin said “ Yes;” Garrett then said be bad sold 110 bead of them; Gelvin did not object, and then gave Garrett instructions about tbe bogs. They were to be weighed between twelve and two o’clock. Tbat Gelvin went to Eisber and told bim be bad bought Glass’ bogs, and tbat a part of tbe light ones bad been sold out, and made a bargain with Eisher to “handle” tbe bogs.for bim, tbe same as he was for Mr. Glass.

The evidence, on tbe part of tbe plaintiffs, tended to prove all tbe allegations of their petition, except tbat “ Eisber, as such consignee and agent of said defendant, sold and disposed of said hogs for tbe defendant.” As to this-allegation plaintiff Glass testified : “ I ordered Mr. Eisber to sell them. He did so. He sold them for me, at my request, and not for Mr. Gelvin, and tbe proceeds were applied on my contract with Gelvin. Hogs were going down and they were sold next day after my sale to Gelvin. Eisber sold the 110 head before Gelvin or myself saw him, after I had sold to Gelvin.”

The evidence, on the'part of the defendant, tended to prove that when he found Fisher had sold 110 head of the hogs he refused to take the others, although Glass offered to turn over to him the receipts for those sold; that defendant was willing to cany out the contract if the whole number was furnished; that hogs were declining, etc.

I. The first question raised by the appellant is as to the delivery of the hogs after the sale. “ When the law can pronounce upon a state of facts that there is or is not a delivery and acceptance, it is a question of law, to be decided by the court. Rut where there may be uncertainty and difficulty in determining the true intent of the parties respecting the delivery and acceptance from the facts proved, the question of acceptance is to be decided by the jury.” Howdlett v. Tollman, 14 Me. 400. When there is no dispute as to the facts, it is a question of law. When the evidence is conflicting, the jury must decide. Hatch v. Bayley, 12 Cush. 29; Williams v. Gray, 39 Mo. 201; In this case the facts were in dispute, there was "conflicting evidence; the plaintiffs’ evidence tending to prove one thing, and the defendant’s just the reverse. This question was, we think, fairly submitted to the jury by the .instructions, and their action as to this point must be conclusive.

II. The second point made by the appellant is, in substance, as the first. It is a question of fact as to delivery and acceptance of possession. If the facts are as the defendant’s evidence tends to prove, then the authorities cited are in point; but the facts being in dispute, the question is with the jury. The statute of frauds was not pleaded. Graff v. Foster, 67 Mo. 512. And if it had been, and the hogs were sold and possession delivered, it would not avail. A vendor may sell goods in the possession of his agent or bailee; and transfer a valid title;, and the possession of the bailee then becomes the possession of the vendee. Erwin v. Arthur, 61 Mo. 386.

III. Tlie appellant insists that the instructions of the court submitted the case to the jury on other issues than those made by the pleadings. The first instruction contains, among other unobjectionable things, that if “it was a part of the contract that said hogs were to remain in the care of Eislier, as the agent of defendant, to sell and dispose of the same, and that the defendant afterward refused to take them, but abandoned the contract, and the hogs were afterward sold by said Fisher, by direction of plaintiffs, and the proceeds paid over to plaintiffs,” the jury should find, etc The petition alleges that said defendant “has wholly failed and refused to pay plaintiffs for said hogs so purchased of plaintiffs by him, in the said stock-yards, and in the hands of said consignee, Fisher, and wholly abandoned them ; that said Fisher, as such consignee and agent of said defendant, sold and disposed of said hogs for defendant,” etc. There is no variance between this instruction and the pleading. The evidence tends to prove that defendant did abandon the contract, and that the hogs were sold by Fisher for his account, and the proceeds paid to plaintiffs. The instruction substantially submits the same question to the jury.

A.11 that part of the second instruction material to consider, is as follows: “ If the jury believe from the evidence that the plaintiffs contracted and sold to the defendant a certain number and lot of hogs, at a certain price, and at the time of the sale apart of the hogs had been sold to other persons by the agent of plaintiffs, and that the defendant thereupon refused to take the remainder of said hogs because the whole number bought were not there, the jury should find for the defendant; but if the hogs were all there when the contract was made, and it was a part of the contract that the hogs should remain with Fisher & Co., and they should continue as the agent of the defendant; this was a valid sale, and the fact that a part of them were afterward sold by said Fisher’s salesman before they were weighed, would not release defendant from the con* tract. Or if a part of the bogs bad been sold by said salesman, aird upon learning that fact defendant agreed to and acquiesced in that sale, and gave instructions to said Eisher, or bis said salesman, as to the sale of the balance of the bogs remaining in Eisher & Co.’s possession, then, and in that case, the defendant would be bound by the contract.”

The second clause of this instruction is objected to because it submits to the jury the question of acquiescence by the defendant in the sale made by Eisher, whereas there is no such allegation in the petition. The petition simply alleges a sale and delivery of the hogs in Eisher’s hands, and an acceptance by the defendant in the agent’s hands. The defendant denied it. This was the issue. Now the plaintiff'. seeks to say, by this instruction, that if my allegations are not true, nevertheless the defendant ratified and acquiesced in the sale by Eisher, and is, therefore, liable. The evidence tended to prove that when Glass and the defendant Gelvin went to see the hogs, and ascertained that part of them had been sold, he did not object, but gave Eisher, the commission merchant, instructions concerning them. In the case of the Capital Bank v. Armstrong, 62 Me. 59, the defendant Armstrong was sued as the indorser of a note ; he answered, alleging that certain words were inserted in the note after he signed it, without his authority, and it was, therefore, void as to him. The reply denied the new matter contained in the answer. The case was tried on these pleadings, but the evidence tended to prove a ratification by Armstrong after learning the change had been made. The plaintiff' sought to submit the question of ratification to the jury by an instruction. The court say the case was tried on the theory of the pleadings, and it is too late to ask an instruction on the theory of subsequent ratification. A party can only recover on the case he makes in his pleading. Moffat v. Conklin, 35 Mo. 453. In this case the petition presents no such issues as that of a subsequent ratification by defendant; and plaintiffs cannot recover if it turns out that a ratification by defendant after tbe sale is the true position of affairs. Iron Mt. Bank v. Murdock & Armstrong, 62 Mo. 70 ; Wade v. Hardy, 75 Mo. 394. The circuit court erred in giving the second instruction for the plaintiff; the issues cannot be changed by an instruction ; they must abide the pleading.

The judgment is reversed and the cause remanded.

All concurring.  