78 N.C. 313 | N.C. | 1878
Lead Opinion
(After stating the facts as above.) Upon these facts it is our opinion that as soon as the order or proposition of the defendant was accepted, the contract was complete without further notice, and that it was fully performed-on the part of the plaintiffs when they delivered the guano-in good condition to the Steamboat Company, rvhen the
There is error. Judgment will be entered in this Court in favor of the plaintiffs for the debt and costs.
Dissenting Opinion
Dissenting. I cannot concur in the opinion of the Court. But for that opinion, I should have thought the question too plain for doubt. My view is this. The defendant, through the agent of the plaintiffs, .whom he made his own agent for the purpose of communicating his proposition to the plaintiffs, proposed to buy of the plaintiffs five tons of guano on a certain credit. An acceptance of his offer was never communicated to him until about six months afterwards, when he was called on to pay for it. He ilever received it. In the interval between the offer to buy and the demand of payment, the guano had been delivered at Baltimore to a common carrier, consigned to the defendant at Edward’s landing on the Roanoke River, and in some unknown way and at some time unknown, lost or destroyed. The doctrine is elementary, and I take, it, is not doubted by any body, that an offer to buy does not constitute a sale or a contract of any sort, until it is accepted, and the acceptance made known to the proposed buyer. While I suppose that this principle is not doubted, it is so important to have, and bear in mind, a clear conception of it, that I cite a few lines from Benjamin on Sales, respecting it.
“To constitute a valid sale there must be a concurrence of the following elements ; 1st. Parties competent to contract; 2nd. Mutual assent, &c. § 1. But the assent must, in order
"Where no time is limited for acceptance of the offer, it should be accepted if at all within a reasonable time, and unless it is so accepted, and the acceptance notified to the person making the oiler, he will not be bound. Metcalf, J in Craig v. Harper, 3 Cush. 158, 160. See also the other cases cited in note Q. to § 41, of Benjamin on Sales.
I do not conceive it to be necessary to áceumulate authorities on this point.that an assent is nothing until it is communicated, but as it is the foundation of my opinion, and although admitted in the opinion of the Court, as an abstract principle, seems to be practically disregarded in coming to its conclusion. I will refer to the familiar cases of Linsdell v. Adams, 1 B. & Ald. 681; Dunlop v. Higgins, 1 J. L. Cases 381, and others of that class relating to contracts by letters, which may be found in all the text books. All these cases assert that until the assent is communicated, there is no sale; they differ only as to whether the assent is communicated when the letter accepting an offer is ^deposited in'the post office, or not until "it reaches its address. Thfey agree that until one or the other takes place, the property does not pass, and the pffer may be withdrawn. See Metcalf on Contracts, 14; and 3 Johns 534; 3 Cush. 158 ; 8 Allen 566.
No doubt the assent may be communicated by sending the article; but it is not thus communicated until the article is received ; and the property and risk are in the shipper until it is received, and if it be lost, the loss is his. In my opinion there never was a completed sale of this guano to the defendant, no property in it was ever in him, because
A bill of lading is the ancient, usual and almost constant indicium of property in goods shipped ; and that, or some equivalent document, is absolutelj'' necessary to enable a vendee to dispose of the goods before arrival, or to enable him or his vendee to demand them from the master of the .ship, or to protect the master in delivering them. It is not necessary to say that the taking and mailing to the vendee ■of a bill of lading is necessary to vest in him the property in the goods shipped. It may be that an assent to his offer to buy, communicated to him and followed by a delivery to .a carrier, would be sufficient; and where no bill of lading is taken, the production of a notice of such an acceptance, might justify the master in delivering the goods to the ven-,dee, just as his knowledge of the fact of the sale, acquired in any other way would, for a carrier may • always deliver goods to their true owner. But it seems clear, that when a .•supposed vendee has nothing to show an acceptance of his offer, and no document of title whatever, even although no bill of lading had beeu signed by the master, he is not in a position to demand the goods from the master, and the master would deliver them at his own risk.
A fortiori, when the shipper does take a bill of lading as he did in this case, the master would deliver the goods to any one but the holder at his peril, and no one but such holder (in this case the age it of the plaintiff) would be entitled to demand them. Lickbarrow v. Mason 2 T. R. 63 Smith’s L. C. notes.
As no notice was ever given to the defendant that his offer was accepted, and a bill of lading was sent to the plaintiffs’ agent, which was never delivered to the defendant, a.u>d of which he was never informed, the property never
Mr. Benjamin, after stating the general rule that a de-1 very to a carrier is a delivery to the purchaser, says in | 694; “But the vendor is bound when delivering to a carrier to take the usual precautions for insuring the safe delivery to the buyer.” He cites the case of Clarke v. Hutchins, 14 East 475, in which the vendor had neglected to inform the carrier of the value of the goods, in consequence of which the vendee was disabled from recovering from the carrier upon their loss, and it was held, that the vendor could not recover their price; that the vendor had not made a delivery of the goods, not having “put them in such & course ol conveyance as that in case of a loss, the defendant might hace his indemnity against the carriers. ”
Kent (vol. 2p. 500) after saying that a delivery to a general carrier is ordinarily a delivery to the vendee, proceeds; “But if there bo no particular mode of carriage specified, and no particular course of dealing between the parties, the property and the risk remain with the vendor while in the hands of the common carrier. (Coates v. Chaplin, 2 Gale & Davison, 2 B 552). The delivery to the agent must be so perfect as to create a r, spjnsibi.ity on tile part of the agent to the buyer, and if the goods be forwarded by water, the vendor ought to cause them to be insured if such has been the usage, and he ought in all cases to inform ihe bttjer loith due diligence of the consignment and delivery.” For this last proposition he cites Bell ou the Contract of yak-, a Scotch work not accessible to me ; but the good sense of the rule, independent of the authority of Bell and Kent, certainly commends it to adoption.
In 1 Chitty on Contracts, 11 Am. Ed. p. 613, it is said;
In this case the usual precaution would have been to take a bill of lading which the vendor did, and ^end it to the vendee which he did not. By his iailure to furnish the defendant with any evidence of property in the goods, he deprived him of all means of indemnity against the carrier. The defendant is compelled to pay for goods that he never received, and never was informed that he had any property In, and that in fact, as I think, he never had a property in. If the plaintiffs had conformed to the known and familiar ■usages of trade, the defendant would either have received the goods, or would have had redress against the carrier. It is said however that he could have sued the carrier and recovered upon the proof made in this case. Suppose for a moment that he might; but was he compelled to pay for the goods and take on himself the burden of an uncertain suit ? I think not, and that the consequences of the plaintiffs’ neglect to observe the known usages of trade, should fall on themselves. But the defendant never could have recovered in a suit against the'carrier, because the property in the goods was never vested in him.
The rule now sought to be introduced would be most inconvenient. As the defendant' never received notice that his offer had been accepted, he had a right to presume that it. had not been. He was under no duty to watch the arrival of vessels at the landing to which he had directed the guano fo be consigned. If that duty laid on him at all, it must
It seems to me that the introduction into commercial law as it has heretofore been understood, of what I cannot help-thinking a novel and unreasonable principle, will not promote the interests of either agriculture or commerce.
Per Curiam. Judgment reversed.