51 Tenn. 453 | Tenn. | 1871
Lead Opinion
delivered the opinion of the Court.
The complainant’s intestate, Lewis T. Bond, in his lifetime, by his agent, James Bond, bargained and sold to the defendant, Nathan Greenwald, his entire cotton crop of 1861, in bulk. At the time of the contract of sale a portion of the cotton was ginned and a portion in the seed. The sale was in the summer of 1862, and prior to the first day of August. It was stipulated in the bargain that the defendant was to take the cotton at the gin of Lewis T. Bond, in Haywood county, as it was ginned, and pay for it as it was ready — the ginning and baling to be done by the bargainor. The price contracted to be paid was twenty-six cents per pound in gold or its equivalent — the weights to
The defendant admits that he obtained actual manual possession of the fifty-two bales, but denies the delivery of the balance. He insists that the agent of complainant’s intestate should be compelled to re-imburse him for alleged losses sustained ,by him in consequence of the non-delivery of a large lot of cotton purchased of him individually — and especially that he should not be compelled to pay for the fifty-two bales actually received, without an account of his losses by the non-delivery of the thirty bales. .
The .Chancellor was of opinion that the defendant was liable only for the fifty-two bales so actually carried away by him — and at the price of twenty-six cents per pound — -and gave a decree against him for ten thousand five hundred and four dollars and eighty-three cents, the amount with interest computed. The complainant has brought the cause by writ of error to this court, and asks a reversal of that decree.
We cannot concur in the opinion of the Chancellor as to the rights and equities of these parties. The principle of law upon which the Chancellor doubtless proceeded, is thus stated:
“Where, by the agreement, the vendor is to do anything to the goods for the purpose of putting*459 them into that state in which the purchaser is to be hound to accept them, or as it is sometimes worded, into a deliverable state, the performance of those things shall, in the absence of circumstances indicating a contrary intention, be taken to be a condition precedent to the vesting of the property:” Benj. on Sales, 221.
The correctness of this principle we do not propose to controvert, but we hold that the facts and the law do not justify the decree of the Chancellor in this case.
In the case of Gilmore v. Supple, Sir Cresswell Cresswell, in giving an elaborate judgment of the Privy Council, says: “By the law of England, by a contract for the sale of specific ascertained goods, the property immediately vests in the buyer, and a right to the price in the seller, unless it can be shown that such was not the intention of the parties.” And in the Calcutta Company v. DeMattes, Blackburn, Judge, pronounced this to be “a very accurate statement of the law:” Vid. Benj. on Sales, 219; 11 Moore, P. C., 566; 32 Law Journal, Q. B., 322, 328.
But in the case at bar, though the crop of cotton was sold as an entirety and in bulk, yet it is contended that it was not a sale of “specific ascertained goods,” as . both the quantity and the aggregate price had yet to be ascertained by the scales and by calculation. And in that view it is urged, that a mere claim of ownership on the part of the buyer, and a disclaimer thereof .on the part
In the case of Williams v. Allen, 10 Hum., 337, that precise question came directly in judgment. In that case the plaintiff had bargained for a quantity of corn, in pens, on the banks of Cumberland river, at the price of one dollar per barrel. A part of the purchase money was paid. In this state of the contract, the corn was swept away and destroyed by a flood. It was held that the quantity of the corn not being ascertained, and the price not susceptible of calculation, the sale was not complete, and the loss was the loss of the bargainer. This case was decided upon the principle that where goods are sold by number, weight, or measure, so long as the specific quantity or measure is not separated and identified, the sale is not complete, and the goods are at the risk of the seller: Story on Cont., § 800. The contract may be complete and binding in other respects, but the property in the goods remains in the vendor, and they are at his risk, if any act is to be done by him before delivery either to distinguish the goods or ascertain the price: Chitty on Cont., 375. And though the subject matter of the contract be clearly ascertained, yet if the price cannot be calculated until the parties have weighed the . goods, no .property therein passes to the buyer till such act be done: Cliitty on Cont., 377. We adhere to this
But we rest this case upon other and different grounds. The complainant contracted to gin the crop of .cotton, and to bale it and leave it at the gin to be paid for and taken away by the defend
It results, therefore, that the defendant must be held liable upon his contract to pay for the entire crop of 1861, or so much thereof as was ginned and baled according to the contract, and received by defendant or his agent, or left at the gin subject to his orders — at the contract price in gold, or its equivalent in legal tender Treasury notes. The number of bales of cotton, and the weight thereof, as well as the relative value of gold coin and legal tender notes at the time of the breach of the contract, being ascertained in the proof of this cause, a decree will be entered here in conformity with this opinion. The costs of this court and the court below will be adjudged against the defendant.
Rehearing
On the 15th June, 1871, a petition for re-hearing having been filed by the defendant,
delivered the following opinion:
This cause was heard and determined at a former day of the term. The defendant, by petition, asks us to reconsider, and reverse, 'or reform the decree made in favor of the complainant.
The cause was beard here at the present term, on the transcript as filed, and as all the original solicitors of defendants bad withdrawn from the case only a few days before the cause was beard, and the solicitor then engaged was ignorant of the facts before stated as having occurred after the rendition of the decree below, no suggestion was made to the court in regard to those facts, and no steps taken to bring them before the court.
The application now is, that the case be reconsidered, and that the additional facts stated be allowed to have their just weight in the determination of the cause. It is further suggested for our consideration, that the judgment rendered in this case is erroneous, and should be reformed.
We are satisfied, that the circumstances which prevented the new facts from being brought before the court, at the hearing of the cause, are such as to make it proper now to consider them, with the view of determining whether they are of a character to affect the conclusion already arrived at, and announced in the case.
The application does not have reference to a failure to give credit in the decree here, for the amount of the decree below, which was paid — that credit is properly given in the decree here as entered — but it has reference to the legal effect of the payment, under the circumstances, on the right of complainant to obtain a decree for an additional amount upon the proceeding by writ of error.
The proceedings which took place, for the enforcement of the satisfaction of the decree below, constituted part of the record of the cause. The transcript, therefore, filed for writ of error, was not complete and perfect, without these proceedings. It. was competent for either party, upon
Looking to the entire record, it appears that complainant, after having prayed for an appeal, waived the right granted to him to give bond within sixty days, and proceeded to enforce his decree to satisfaction. If he had perfected his appeal, by giving bond, the decree would have been vacated, and his right to enforce it would have been taken away. It is said, that by abandoning his appeal, and electing his right to enforce liis decree, he thereby elected to stand by the decree, and consequently waived his right afterward to resort to the writ of error. In support of this position, it is argued, that the defendants had a right to assume, that complainant had elected to be satisfied with the decree, and' that they, and especially the surety Jones, were thereby thrown off their guard, and sustained injury in satisfying the decree, under the impression so produced upon him by the conduct of complainant. It is not for us to determine how the rights and liabilities of the surety would be affected, if the facts were made to appear that the appeal was prayed, and time obtained to give the bond, with the view of deceiving the defendants into the belief that the
"We have re-examined tbe question as to tbe proper judgment to be rendered, on tbe breach of tbe contract to pay for tbe cotton in gold or its equivalent, and we are unable to see that tbe decree entered does not carry out tbe intention of tbe parties in making tbe contract. Tbe defendants bad tbe election to pay in gold or its equivalent at tbe time tbe day of .payment arrived. Having failed to make .an election, but being in default in paying at all, tbe complainant was then entitled to damages for the breach of tbe contract. His damages were tbe amount in gold, or its value or equivalent in currency. As defendant bad failed to elect to pay in gold, complainant bad a right to insist on tbe terms of tbe contract, which were, that if tbe payment was not made in gold, it should be made in an amount of currency equivalent in value to tbe gold. Tbe decree is so entered, and we do not see that it is in conflict with tbe cases of Bronson v. Rodes, 7 Wall, 229, and Butler v. Horwitz, 7 Wall, 258.
On a further application, made July 5, 1871, to have the decree modified as to the sureties in the replevin bond,
delivered the following opinion:
This is an application to the Court on behalf of the sureties in the replevin bond to vacate and set aside as to them the decree and judgment rendered in this cause, on a former day of the term, for the reason that there was no copy in the. record of the replevy bond, executed by defendants G-reenwald and Lobe, upon the suing out of the attachment by complainant, said bond, by oversight, not having been copied into the transcript. The Court being satisfied, upon inspection of the record, that said bond was omitted, by oversight, in making out the transcript, and a certified copy of the said bond being now on file as part of the record, the Court is of opinion that the said decree and judgment should be vacated and set aside, and that the same should now be entered in pursuance of the opinion heretofore delivered in the cause; it is therefore ordered that the same be now done.
And the Court being of opinion that according to the terms of the replevy bond, executed by defendants G-reenwald and Lobe, with K. S. Jones and M. M. Seay as sureties, complainant is entitled to have judgment against the said Greenwald and
The decree, therefore, will be entered against the obligors to the replevy bond for the amount of the debt, interest, and costs, as determined by the decision already made.