3 Mo. App. 490 | Mo. Ct. App. | 1877
delivered the opinion of the court.
This was an action to recover the price of certain wood
The answer, after specifically denying the allegations as to the sale and delivery, set up a contract by which plaintiffs agreed to deliver to defendant 1,000 cords of oak and hickory wood at $3 a cord, of a specified quality, and sufficiently good to enable defendant to fill a contract which he had, of the terms of which plaintiffs were informed. The answer then admitted that in May and July, 1874, plaintiffs delivered to defendant 834 cords of wood of inferior quality, and not of the kind agreed upon, for which the defendant paid at the contract rate, notifying the plaintiffs he would not receive or pay for the rest. As to the 600 cords of cottonwood, the answer alleged that the contract was that defendant was not to take it unless he should be able to find a buyer for it at $2 a cord; that after due efforts he could find no buyer at that price, and so notified plaintiffs ; that defendant never received or used any of it. The reply put ■in issue the affirmative matter of the ansAver.
The testimony of the plaintiffs tended to shoAv that they sold to defendant 1,000 cords of oak and hickory wood at $3 a cord, and 600 cords of mixed and cotton-wood at $2 •a cord ; that by the contract the wood Avas to be delivered -on the Mississippi River bank, at Rush Tower; that enough oak and hickory wood was placed on the river-bank to cover the contract; and that the defendant took part of the wood and made payments on account of it, and was notified that the rest was on the river-bank ; that, as defendant did not take it, the rest of the oak and hickory Avood Avas sold by
At the request of the plaintiffs the court gave the following instruction:
“ If the court, sitting as a jury, find from the evidence
The court found for the plaintiffs in the amount claimed.
The respondents attempt to withdraw this case from the operation of the general rule that where the goods are sold by number, weight, or measure the sale is incomplete, and the risk continues with the seller until the specific property is identified and separated, by urging that, as the appellant was notified that the wood was delivered, and as appellant took a part of it, the contract was perfected by delivery, and the respondents became merely bailees of the wood for appellant. They attempt to bring this case within Kimberly v. Patchin, 19 N. Y. 330; Waldron v. Chase, 37 Me. 414; and Riddle v. Varnum, 20 Pick. 283.
It is not necessary to compare the doctrine of the cases just cited with the law as laid down in Scudder v. Worcester, 11 Cush. 573, and Ropes v. Lane, 9 Allen, 502. Where the acts of the vendor himself are inconsistent with a sale and delivery, he certainly cannot claim that the property has been sold and delivered. “ The question of the transfer to, and vesting the title in, the nur chaser,” said the Supreme Court of
The following instruction asked by the defendant correctly expressed the law applicable to the case, and should have been given:
“As the plaintiffs sue for the contract price of wood which they allege was sold and actually delivered by them to the defendant, they can recover as to such wood only as the court, sitting as a jury, may find from the evidence they did so deliver. And if the court find from the evidence that the plaintiffs did not set apart, on the river-bank at Eush Tower, 1,000 cords of oak and hickory and 600 cords of mixed and large cotton-wood, for the exclusive use of defendant, but that plaintiffs merely placed a large quantity of wood of various descriptions and quantities in one general pile, and suffered any one who wished to purchase from them to obtain, from time to time, from such general pile, such
In regard to the mixed and cotton-wood, there was evidence tending to show that the contract as to that wood was conditional, and the instruction based on such evidence should have been given. But, as the pleadings stood, the question of delivery was essential, and the plaintiffs’ evidence showed there was no delivery.
The judgment of the court below is reversed and the cause remanded.