74 Neb. 595 | Neb. | 1905
McDonald brought this action in replevin to recover from Baker certain hay of which he claims to be the absolute owner. On a trial to the court without a jury, judgment went in his favor, and Baker has brought the case here on error.
The parties entered into a contract relating to the hay in question and signed the following memorandum:
“Fremont, Neb., Oct. 9, 1902.
“This day I have sold to Thomas Baker thirty stacks of hay at $2.75 per ton in the stack, for which I have re*597 ceived $100. The bay- is to be measured in tbe stack. This bay is to be moved off tbe ground before March 1, 1903.
“Thomas Baker.
“P. A. McDonald.”
There were more than 30 stacks in tbe field at the time tbe contract was made, and tbe particular stacks which Baker was to have were not set apart or designated, but it was understood that Baker might select them from the whole number in tbe field. Sometime after tbe contract was made, and before tbe bay was measured, Baker, at tbe request of McDonald, made a further payment of $200, making $300 paid on tbe contract price. Baker was unable to be present in person when tbe bay was measured, but was represented by a man of bis own selection, who participated in that part of tbe transaction. Tbe measurement was made of 31 stacks instead of 30, but of this no complaint is made by Baker. Baker took tbe figures of tbe measurements with him to Omaha and, after some delay, made a computation and found, as be claims, that tbe stacks contained 112 tons and a fraction. He then wrote tbe plaintiff, giving the measurements and result of bis computation, and inclosing his check for $8.40 as tbe balance due on tbe hay according to bis measurements and computation. McDonald immediately returned tbe check, with a letter to tbe effect that be was not satisfied with tbe measurements. On receipt of this letter, Baker answered, saying that, if McDonald was not satisfied with tbe measurements, he could return tbe $300 and have tbe bay. In tbe meantime Baker bad commenced to bale tbe bay, and bad shipped about 14 tons of it to Omaha. On receipt of Baker’s last letter, McDonald went to tbe field where tbe bay was stacked, notified Baker’s men not to press or ship any more of it, and then brought this action to recover possession of tbe bay, alleging that be was tbe absolute owner thereof.
Tbe case was brought and tried on tbe theory that there was fraud or mistake in tbe measurement of tbe bay, and
The material question to be determined, then, is, who held title to .the hay at the time this action was commenced? The modern doctrine undoubtedly is that neither delivery nor payment of the purchase money is generally requisite for vesting title to personal property in the buyer under a contract of sale, it being necessary only that the identical goods which are the subject of the contract should be ascertained and the price fixed. New-
When the contract for the sale of this hay was made between the parties, title did not then vest in Baker, because the stacks were thereafter to be selected by him; but, when his selection was made and the hay definitely ascertained and measured, then he became vested with the title and took all the risk of ownership. Had the hay been burned or otherwise destroyed, Baker, instead of McDonald, would have sustained the loss; and there can be no question that McDonald, immediately after the selection and measurement, might have sustained an action against Baker to recover the balance of the purchase price, and this on the theory that the title had passed. Allen v. Rushfort, 72 Neb. 907; Barker v. Davies, 47 Neb. 78. Had McDonald brought this action, claiming a special interest in the hay, there is no doubt that, upon proof of fraud or mistake in the measurement made, he would be entitled to a judgment giving him possession and determining the extent of his interest. His claim is that by a fraudulent or mistaken measurement it is sought to deprive him of about 28 tons of hay, of the value of $77. Had his action been brought upon this theory, Baker could have tendered
We recommend that the judgment be reversed.and the cause remanded.
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is reversed and the cause remanded.
Reversed.