39 A.D. 617 | N.Y. App. Div. | 1899
Present—Van Brunt, P. J., Barrett, Rumsey, Patterson and O’Brien, JJ.
The following is the opinion of the referee:
Hamilton Odell, Referee:
The plaintiff imported and sold lake asphalt, and the defendant imported, refined and sold land asphalt, both from the island of ’Trinidad. They were business competitors in the markets of the Hnited States. In January, 1893, they entered into an agreement by which the plaintiff agreed to sell and deliver to the defendant ■such quantities of crude asphalt from the Trinidad pitch lake as the •defendant might require for the fulfilling of its contracts made, or’ "to be made, with certain parties for supplying them with lake .asphalt for laying or repairing asphalt pavements in specified cities .and towns, including the city of Syracuse. The defendant agreed .to purchase its supplies exclusively from the plaintiff, “ and to seE
At the date of the agreement (January 2, 1893) the defendant had on hand a large stock of both refined and crude land asphalt, .amounting, according to the defendant’s witness Whitney, to 5,500 tons of refined and 1,200 tons of crude, and according to the plaintiff’s witness Brackett, to 3,000 tons of refined and 500 tons of crude. It is said that there is no evidence that the plaintiff had knowledge ■of this fact. The testimony of Mr. Blackwell shows that the large quantity of land asphalt held by the defendant was the subject of discussion before the agreement was signed, and the presumption is
In the second place, the plaintiff claims that the land asphalt mentioned in the complaint was not “ sold ” by the defendant within the limited time — that is, during the year 1893. The argument is that the words “ may sell,” in the 6th clause of the agreement, are used in their “ plain, ordinary and popular sense ” (which is probably so); that they mean “ may make sales; ” that a sale is a transaction between the parties by which title to property ¡Dasses from one to the other; that title does not pass by an executory contract of sale; that such contracts are not, therefore, intended or permitted by the “ may sell ” of the agreement; and that the defendant made no sales, but only executory contracts of sale, of the land
The facts are, that in.January, March and August, 1893, contracts were made between the defendant and the Syracuse Improvement Company for the sale and purchase of sufficient quantities of: land asphalt to pave and keep in repair certain streets in the city-of Syracuse—■ such asphalt to be delivered and accepted before; dates mentioned in said contracts — some before July 1, 1893 ;, some before November 1, 1893 ; some before June 1, 1894; some-before September 1, 1894; and the remainder during the years. 1894 and 1895 ; and that the 2,861 tons of asphalt referred to in. the complaint were delivered by the defendant under the said contracts, and were actually used in pavements in 1894 and 1895. The: dates of the deliveries have not been shown.
When a sale is defined as “ a transfer of the absolute title to property for a certain agreed price ” (Story Sales, § 1), or as a “ meeting; of minds, by which a title passes from one and vests in another ” (Butler v. Thomson, 92 U. S. 415), the definition covers or includes the entire transaction, which, from being executory, has-become executed by delivery or payment or performance of conditions or separation or identification and appropriation of the tiling-sold, or other act or event on which the transfer of title is, by the-agreement of the parties, made to depend. The question whether a transaction is a sale by which title has passed to the purchaser usually arises either on a claim asserted by a third party, as in Hatch v. Oil Co. (100 U. S. 124), where the property was seized under-execution as the property of the seller, or, as in Porter Mfg. Co. v. Edwards (29 Hun, 509); Pinckney v. Darling (3 App. Div. 553), where the property was seized under process as the property of the-buyer; or when, before actual delivery, the property is destroyed or damaged, as in Olyphant v. Baker (5 Den. 379); Terry v. Wheeler (25 N. Y. 520), where the barley and lumber were destroyed by fire; Burrows v. Whitaker (71 id. 291), where the logs were swept away by a flood; Mee v. McNider (109 id. 500), where the cocoa was-damaged while in transit from the port of shipment. It is, however, matter of common knowledge that in ordinary, every-day transactions the distinction between a sale that passes title and an executory contract of sale is not heeded or observed. If goods are sold to be-
It is plain 'to me that the words “ may sell ” were not used by the-plaintiff in the 6th clause of the agreement in any other than the-ordinary sense, and that the plaintiff did not thereby intend to-restrict the defendant to sales of land asphalt by which title would at once or presently pass to the purchasers. They intended “ sell ”' in the 6th clause to have the same meaning as the same word in the; 5th clause, and it would certainly be absurd to say that by the 5th clause the defendant is prohibited from contracting to sell for future-delivery asphalt purchased by it from the plaintiff.
The defendant should have judgment dismissing the complaint- and for the. counterclaims.