122 Minn. 432 | Minn. | 1913
Tbis is an action in conversion to recover tbe valne of 5,334 bnsbels ■of wheat. Tbe case bas been tried twice. On tbe first trial, before a jury, tbe court directed a verdict in favor of defendant, on tbe ground that tbe evidence conclusively showed that defendant was tbe -owner of tbe wheat. On appeal tbis order was reversed on tbe ground
The wheat was originally shipped to plaintiff, as commission merchant, by the Mapes Farmers’ Elevator Company of North Dakota. Defendant claims plaintiff sold and passed title to the wheat to one Mohler, and that Mohler sold and passed title to defendant. The real question is whether title ever passed from plaintiff to Mohler. The facts are as follows:
On February 6, 1907, plaintiff agreed on the floor of the Minneapolis Chamber of Commerce to sell Mohler 5,000 bushels of No. 1 Northern wheat at 83f cents a bushel, to arrive in Minneapolis at any time before June 1, 1907. It was understood, in accordance with the usual custom in such cases, that the wheat was to be inspected and graded by the state grain inspector and weighed by the stated weighmaster. The sale was made on account of the Mapes Farmers’ Elevator Company, and on the same day the plaintiff notified said company of said transaction.
On April 13, 1907, Mohler sold to defendant, on the floor of the Chamber of Commerce, 10,000 bushels of wheat, to arrive.
On April 17, 1907, two cars of wheat were shipped by the Mapes Farmers’ Elevator Company consigned to plaintiff in Minneapolis. On April 19, 1907, two more cars were shipped by the same party in the same manner. The cars were inspected and graded by the state grain inspector April 22 and 23, and notices covering said cars were forthwith sent by plaintiff to Mohler, each in form as follows: “We apply on sale to you to-day of
“Please check, and if not correct, notify at once.”
These notices meant that the cars were applied on the sale made February 6, 1907, and the letter “L” meant that the wheat was to go-to defendant’s elevator L. In each case plaintiff also issued written instructions to the railroad company as follows: “Please deliver the
Mohler at once applied these cars on his sale to defendant, and in writing confirmed delivery to defendant. Thereafter, these cars were all switched to defendant’s elevator and upon the private track of defendant. On Sunday, May 12, 1907, the first of these cars was so switched and the grain was unloaded into defendant’s scales, and on that day weighed by the deputy state weighmaster. The official record of weight was ready for inspection Monday morning, May 13. Neither plaintiff nor Mohler knew the weight until then. Early in the morning of Monday, May 13, the other three cars were switched to defendant’s elevator and upon defendant’s private tracks. They were unloaded and weighed on that day and the weight was made public on the morning of May 14.
In the meantime Mohler became financially embarrassed, and, on May 13, was unable to meet his obligations. Plaintiff learned of Mohler’s financial troubles on the morning of May 13. On the morning of May 13, plaintiff rendered Mohler a statement covering the first car, unloaded on the twelfth, showing the car number, grade, gross weight, dockage, net weight, price and total amount due. On the fourteenth, and after Mohler’s condition was well known to plaintiff, it rendered Mohler a statement in similar form, covering the remaining three cars, and also charging him with an over delivery of 334 bushels, being the amount that the contents of the four cars exceeded the 5,000 bushels contracted for. This excess was charged at the current price of $1.01J. On the next day, May 15, plaintiff rendered to Mapes Farmers’ Elevator Company an account.of sales corresponding to the statements to Mohler, showing the amounts realized on sale to him and deducting therefrom commissions and other charges. Plaintiff soon thereafter remitted to Mapes Farmers’ Elevator Company on that basis. Mohler never paid plaintiff for the wheat. Defendant never paid Mohler, but claimed that Mohler was indebted to defendant in an amount exceeding the value of the wheat.
In case of each shipment from Mapes Farmers’ Elevator Company to plaintiff, a bill of lading was issued covering the cars in question and one other car, and running to “E. L. Welch & Co.” Neither
There is also evidence that it was customary among dealers on the chamber of commerce, where a car of wheat has been applied by :a seller on a sale in the manner above mentioned, for the purchaser ifco apply the same on sales made by him and so on for several successive transactions, all while cars are on track and before final delivery of the wheat at any elevator for unloading and weighing, and in such case subsequent purchasers settle with those from whom they have bought without reference to settlement on previous sales and without production of receipts or vouchers from prior sellers.
Sometime on Monday, May 13, plaintiff notified defendant not to unload these cars. The court found that this notice was given between 11: 30 a. m. and 2 p. m. The court also found that the cars were all unloaded before 11:30 a. m. on that day. The unloading was doubtless hastened by defendant on account of Mohler’s known financial embarrassment.
The court found that the foregoing transactions operated to transfer to Mohler the title and the possession of all of said wheat; that plaintiff did not intend to retain any dominion or control over it, but ■did intend to convey and transfer both the title and right of absolute and unconditional possession.
But these rules are in every case merely rules of presumption. Williston, Sales, § 269. The language may be such as to. indicate that the parties intended that the title should pass when delivered, even though by the contract the vendor is bound to weigh or measure the goods.
In Gardner v. Northern Pac. Ry. Co. 118 Minn. 275, 136 N. W. 1028, it was held that the fact that railway ties were to be inspected and counted after delivery, and that 60 per cent was to be paid in’ cash when the ties were inspected, did not prevent the passing of title before inspection and payment.
In Fredette v. Thomas, 57 Minn. 190, 58 N. W. 984, a sale of saw logs provided for delivery on a railroad right of way, scale to be made there by the surveyor general of logs for that district, price to be fixed by such scale. These provisions were held not inconsistent with a verdict that title passed. See also Morrow v. Reed, 30 Wis. 81.
It is clear that the fact that this wheat was not weighed at the time of its transfer to Mohler’s account, did not, as a matter of law, prevent the title and right of possession from passing. It was merely one circumstance to be considered along with others in determining the intent of the parties.
Order affirmed.