Opinion
January 4, 1965 —
February 2, 1965.
APPEAL from a judgment of the circuit court for Adams county: LOWELL D. SCHOENGARTH, Circuit Judge. Affirmed.
For the appellant there was a brief by Brazeau, Brazeau, Potter Cole of Wisconsin Rapids, and oral argument by Richard S. Brazeau.
For the respondent there was a brief by Schlotthauer, Jenswold, Reed Studt of Madison, and oral argument by John F. Jenswold.
Action for restitution for unjust enrichment, allegedly resulting when plaintiff carrier, by mistake, delivered property to defendant in violation of the contract between carrier and shipper.
Defendant Quick-N-Clean Corporation, of Brainerd, Minnesota, ordered a laundromat washer from Clesco National Products, Inc., of Cincinnati, Ohio. The agreed price was $1,690. Quick-N-Clean had made payments which left a balance of $980. Quick-N-Clean was interested in reselling the washer to Wm. Gillingham of Adams, Wisconsin, and the washer was to be shipped to that point. Quick-N-Clean drew a sight draft for $2,600 on Gillingham, payable to the order of the Adams County State Bank at Adams. This sum included the price Gillingham agreed to pay for the washer plus some other items. Either Quick-N-Clean or Clesco sent the Adams County State Bank a purported order bill of lading for the shipment of the washer from Cincinnati to Adams, showing Quick-N-Clean as the shipper and consignee with instructions to notify Gillingham. This purported bill of lading does not appear to have been signed by any carrier. It referred on its face to the sight draft, and was accompanied by the $2,600 sight draft above referred to.
An order bill of lading was issued by Associated Truck Lines, a carrier, at Cincinnati, for shipment of the washer from Cincinnati, Ohio, to Adams, Wisconsin, showing Quebec Industries, Inc. (apparently an associate or affiliate of Clesco) as shipper and Clesco, or order, as consignee. It referred to a sight draft at a bank in Brainerd, Minnesota. Such draft, in the amount of $980, was drawn by Clesco on Quick-N-Clean and apparently payable to the Brainerd bank. Both bills of lading were dated August 11, 1961.
The carrier which ultimately brought the shipment to Adams was plaintiff, Gross Common Carrier. Gillingham was notified, paid the $2,600 sight draft at the Adams bank, obtained from the bank the bill of lading in which Quick-N-Clean was consignee, endorsed by the bank, and surrendered it to Gross. The agent of Gross failed to observe that this was not the bill of lading described in the waybill, and delivered the washer. The bank at Adams remitted the $2,600 to Quick-N-Clean.
Clesco was already indebted to Quick-N-Clean for more than $980, and Quick-N-Clean credited the $980 balance due on the washer against Clesco's obligation. The draft at Brainerd was never paid, and Clesco collected $980 from Associated Truck Lines on the ground that the washer had been delivered without requiring surrender of the proper bill of lading. Associated asserted a right to reimbursement from Gross, and Gross settled by paying $850. Gross' action is for this amount.
The parties stipulated that when Quick-N-Clean ordered the washer, it directed Clesco to ship it on a bill of lading such as the one sent to the bank at Adams, and accompanied by the $2,600 sight draft on Gillingham; that Quick-N-Clean did not consent to the terms of the bill of lading on which the washer was actually shipped, nor to the $980 sight draft, and did not know of the existence of these papers until after the shipment.
The circuit court determined that the defendant had not been unjustly enriched. Judgment dismissing the complaint was entered on June 1, 1964. Plaintiff has appealed.
Under the contract between the shipper and Associated Truck Lines, the receiving carrier, the washer could only be delivered upon surrender of the original bill of lading properly endorsed. In order to obtain this bill of lading, Quick-N-Clean would have had to pay $980 to the bank at Brainerd for Clesco's account. It is conceded by all that under the applicable law, the receiving carrier was liable to Clesco for improper delivery, and Gross was liable for reimbursement.
149 USCA, p. 114, sec. 20 (11).
The stipulation indicates, however, that the cash-on-delivery arrangement between the shipper and the carrier was inconsistent with the contract between Quick-N-Clean and Clesco. Under the latter, the carrier was to be permitted to deliver the goods on order of Quick-N-Clean, and Gillingham would have been entitled to delivery upon payment of $2,600 to the Adams bank for the account of Quick-N-Clean. Plaintiff has not established that Clesco had any right, under its contract with Quick-N-Clean, to withhold delivery until the balance of the purchase price was paid to Clesco in cash. Since Clesco owed Quick-N-Clean more than $980, the parties may well have intended that the balance due on the washer would be merged in the account between them.
There is a suggestion in the record that Clesco is in financial difficulties. We may surmise that Clesco may have shipped the washer c. o. d. in the hope that Quick-N-Clean would pay cash rather than suffer delay by insisting upon its right to obtain possession on open account. Gross' mistake frustrated the plan, but it has not been shown that Quick-N-Clean received any advantage to which it was not entitled under its contract with Clesco.
A right to restitution is governed by equitable principles. If Gross' delivery of the washer without requiring cash settlement can be said to have conferred a benefit on Quick-N-Clean under these circumstances, we do not deem it inequitable for Quick-N-Clean to retain it.
See Nelson v. Preston (1952), 262 Wis. 547, 550, 55 N.W.2d 918; Amalgamated Asso., etc., Div. 998, v. Danielson (1964), 24 Wis.2d 33, 36, 128 N.W.2d 9.
By the Court. — Judgment affirmed.
BEILFUSS, J., took no part.