1 Hilt. 366 | New York Court of Common Pleas | 1857
This is an action to recover the value of twenty-three boxes of candles, alleged to be wrongfully detained from the plaintiff by the defendants, in which the plaintiff was non-suited upon tbe following state of facts:
The clerk of the plaintiff called upon one Russell to solicit an order for soap and candles. Russell agreed to take twenty-five boxes of soap and fifty boxes of candles, upon condition that the plaintiff would take in exchange all the damaged candles which Russell then had in his store. The clerk consulted tbe plaintiff, and he accepted the proposition; and, a day or two after, tbe clerk called upon Russell, and informed him that the plaintiff agreed to the terms proposed; whereupon Russell ordered, at the market price, twenty-five boxes of soap and fifty boxes of candles; and the clerk, on the part of the plaintiff, agreed to
The following day tbe clerk entered tbe order given by Russell on the plaintiff’s order book, and a day or two afterwards fifteen boxes of soap were sent to Russell. In a few days a load of candles was sent; but Russell in the meanwhile having made an assignment, bis assignee, Mr.Dimmick, refused to receive them, and they were brought back by tbe carman. The plaintiff’s clerk then called at Russell’s store, and after being informed by Dimmick of tbe fact of tbe assignment, the clerk demanded tbe damaged candles purchased of Russell, or that the soap which tbe plaintiff bad delivered to Russell should be returned. Dim-mick said be would take legal advice, and tbe clerk having called tbe next day, Dimmick told bim that he bad sold tbe soap and bad also sold tbe candles, to go into tbe country. The clerk afterwards saw Mr. Potter, one of tbe defendants, who told bim that he bad bought a lot of candles from Dimmick, at a bargain. Tbe clerk then stated to bim tbe circumstances, and Potter said it was hard for the plaintiff; that be had not paid Dimmick for tbe candles, and also that it made no difference to the defendants bow tbe suit terminated. The complaint alleged that twenty-three boxes of candles, slightly damaged, were delivered by Dimmick to tbe defendants, containing 1,177 pounds, amounting, at 13& cents per pound, to $158.89 ; wbicb was not denied by tbe answer.
But I think the court below erred in granting a nonsuit. Before a nonsuit can be directed, there must be no doubt in respect to what is proved by the evidence. The evidence must not only be taken to be true, but it must be so clear and conclusive, in respect to the facts upon which the conclusions of law are based, that it is in the power of the court to draw every inference which a jury might draw. Smyth v. Craig, 3 Watts & Serg. 18. If it is not of that character, the case must be submitted to the jury under proper instructions from the court in respect to the law. lÜ^is is especially so where no written agreement or contract is entered into, and a question arises as to the intent of the parties, to be gathered from their acts and declarations. Where the intent follows as the legal and logical conclusion from their acts, it may be passed upon by the court; but where, upon the evidence, it is so uncertain or doubtful as to justify a jury in finding either way, then it is not in the province of the court to pass upon the question, but the case must be submitted to the j ury.
Such, I think, was the case here. The agreement was in part for the exchange of commodities, or, rather, it was an agreement for the sale of goods, payment for which was to be made partly in goods ; the whole amount, or quantity of which, was not ascertained, but which was to be taken at a certain rate per pound, and partly in cash. If the parties had put their agreement in writing, and nothing more was expressed, but that the plaintiff was to deliver a certain quantity of soap and candles at a stipulated price, to be p,aid for partly in damaged candles and partly in cash, the construction of it, as an executory contract, would be, that the delivery of the damaged candles and the cash payment was to be contemporaneous with the delivery of the soap and candles the plaintiff bad agreed to sell. But it may have been the intention of the parties here, that the damaged candles were to be delivered at once. They were pointed out, piled up
It is urged, however, that'there could be no delivery of tbe damaged candles, as tbe entire quantity bad not been ascertained; tbat though separated and distinguished as a lot, tbe number of pounds contained in each box bad not been ascertained, tbat until tbat was done, and tbe whole number of pounds known, tbe delivery was not complete. It is, undoubtedly, the general rule in tbe sale of goods, tbat, while anything remains to be done respecting tbe goods between buyer and seller, tbe title remains in the vendor. That where any operation of weight, measurement, counting dr tbe like, remains to be performed in order to ascertain tbe price, tbe quantity, or tbe particular commodity to be delivered, and to put it into a deliverable state, tbe contract is incomplete until sucb operation is performed. Brown on Sales, 44 ; Macomber v. Parker, 13 Pick. 183. This rule is founded upon tbe presumption of law, tbat it .is not tbe intention of either buyer or seller tbat tbe title to tbe property should pass while something remains to be done; that they do not intend to treat- it as delivered, until tbe vendor has done all tbat it is essential be should do, and nothing remains but for the vendee to take possession. But this presumption must give way, and tbe rule founded upon it, where it appears from the acts and declarations of parties that tbey intended otherwise, Story on Contracts, 800, b, and cases there collected. Tbe authorities, moreover, are by no means agreed as to tbe precise extent or application to be given to tbis rule. Thus, it was held in Williams v. Allen (10 Humph. 339), that though tbe subject
But whether the rule as stated by Justice Strong be correct or not, the title to the property will pass, though it be left in tbe possession of tbe vendor, and though something may remain to be done, as weighing or measuring, if such was the
In this case, the subject matter of the contract (the damaged candles) was identified and pointed out as a distinct and separate lot; and though the number of pounds had not been ascertained, and though that was essential for the purpose of ascertaining what amount was to be paid by Russell in cash, still it may have been the intention of the parties that they should be regarded as delivered to the plaintiff when he should deliver some soap in part performance of his part of the contract; that he should then be at liberty to take them away, allowing Russell for the number of pounds, at the rate agreed upon. The quantity contained was agiere matter of computation, as candles are sold by the number of pounds marked upon the outside of the boxes. If the plaintiff had, in conformity with Russell’s request, taken them away without ascertaining the quantity, there could be no doubt but that the property would have been in him, as the price was agreed ujson, and the ascertaining of the quantity was merely a matter of calculation. Scott v. Wills, 6 W. & S. 366. It may well, therefore, have been the understanding of the parties, after the terms and conditions of the contract were finally settled, that he was at liberty to take them away whenever he thought proper. Unless the court could say that it was deducible, as a conclusion of fact, from the evidence, that the parties did not intend that the candles should be taken away, or that the title to them should not vest in the plaintiff, until the quantity was ascertained, it could not take the case from the jury. If it was not in evidence that Russell directed the plaintiff’s clerk to take them away, the court perhaps would be justified in coming to that conclusion; but, with that evidence in the case, the question of intent became at least too uncertain and doubtful to entitle the court to draw a positive conclusion respecting it. It was said, in Bradbury v. Marbury (12 Ala. 520), that “ Where testimony is too indefinite and inconclusive to warrant the court in saying that one thing or another is proved by it, the question must be left to the juryand that, in my judgment, is the case
If tbe title to tbe property was in tbe plaintiff, it could not be divested by tbe sale to the defendants. Williams v. Marsh, 11 Wend. 80 ; Covil v. Hill, 4 Denio, 323. Bussell’s assignee could transfer no title; and if tbe candles purchased by the defendants were tbe damaged candles embraced in Bussell’s contract with tbe plaintiff, which was a question of fact to be submitted' to a jury, the plaintiff could maintain tbe action.
I cannot concur in tbe proposition that, upon proof of a contract, whether in writing or by parol, where tbe terms of such contract are not varied by tbe testimony, it becomes necessary to submit such contract to tbe jury for interpretation as to tbe intentions of tbe parties. If there is no dispute about tbe terms of a contract, it is tbe duty of
I do not, however, think this question to be material in this because, in my opinion, no title to the property ever passed to,,he plaintiff. The contract was for the sale, by plaintiff to Eussell, of a lot of soap and candles, to be paid for in part by candles in Eussell’s possession. Payment, I conclude, is never to be made until delivery of the article purchased, unless by express agreement. There was no such express agreement in this case; on the contrary, the contract was, to sell the soap and candles, and to take pay part in candles at a fixed price and part in cash. The plaintiff had no more right to the candles than to the cash in advance, and, until delivery of the whole property sold by the plaintiff, he had no right to demand payment, whether in cash or candles. The purchaser had a right to elect whether, on delivery of ¡aart, he would pay in part or not; and if he so elected to pay in part, he had an equal right to elect whether such payment should not be in cash. But a delivery by the plaintiff of a part of the goods sold did not vest in him the title to the goods he was to receive in part payment; and especially so, when it is apparent that the goods delivered by the plaintiff were far less in value than the goods to which he claims title in consequence of such delivery. It could not be urged, with any reason, that a delivery of one box of soap, under that contract, would vest in the plaintiff the title to all the twenty-five boxes of candles, and yet there is no more reason for such change of title in the one ease than in the other. It might be said that the remark made
The subsequent offer to deliver to Dimmiclc was no tender to Russell, and no act was afterwards done to complete the sale, or to entitle the plaintiff to a delivery of the candles by Russell; and, before that offer was made, even if it had been sufficient, the title to the damaged candles had been transferred by Russell to his assignee and by the assignee to the defendants.
I do not see how, from the evidence in the cause, the jury cou^, find any amount as respects the quantity of candles which were so claimed by the plaintiff. The complaint fixes the quantity at twenty-three boxes, but every allegation therein is denied by the answer, and there is not a particle of evidence to show that the quantity in Russell’s possession was twenty-three boxes, or that they contained 1,177 lbs. It may be, however, that on the trial such value was conceded.
The dismissal of the complaint was proper, and the judgment should be affirmed.
Judgment affirmed.