139 Va. 92 | Va. | 1924
delivered tbe opinion of tbe court.
This was an action by Arbuckle Brothers, plaintiffs, against tbe defendant to recover tbe purchase price of 110 bags of sugar sold to tbe defendant, for which it refused to pay.
The contract was entirely by correspondence. It was negotiated through F. V. Gunn & Company, brokers, of the city of Richmond. It began by a letter from the brokers to the defendants, dated July 24, 1920, saying: “We remember that you have frequently asked us regarding sugar. We have an opportunity now to sell you sugar and it is the first opportunity we have had- since our business acquaintance with you. Messrs. Arbuckle Brothers are offering at twenty-one cents, New York, for shipment up to August 10th.” On the same date, the defendant replied, saying: “Please ship, as per your letter, 100 sacks granulated sugar 100s, 10 sacks yellow sugar. This may come through to Richmond in a car lot and we will appreciate it if you will rush this out to us.” The brokers had some difficulty in getting the order accepted. But on August 6, 1920, they wired the defendant: “Entered your 100 bags fine, ten bags eights twenty-one,” and on the same date wrote the defendant confirming their' telegram “on a basis of twenty-one cents,. New York,” and saying further: ‘‘The sugar will be shipped promptly in a pool car to a wholesale grocer in Richmond, and on arrival we will reship the same to you. Of course, you are to pay us the handling and cartage charges, which will be probably one cent per. bag for handling, and at the prevailing cartage charge which we think we could get
“We are surprised that you have shipped us 110 sacks of sugar which came to Richmond, Va., in a car*98 that has been on the railroad for more than a month and not inform us as to how we stand on a claim. We are powerless to protect ourselves except to decline accept the sugar as written you several times before— therefore until we are assured of protection, this sugar will remain in the depot. We bought this sugar about the first of July for immediate shipment and this is the 18th of September and a most unreasonable time has elapsed since that time.
“On this schedule, we might buy an article now for quick shipment and get it about the year 1925.
“We will await your advice in the matter.
“If the sugar had been shipped direct to us we could have protected ourselves without any assistance from anyone else, but as we did not purchase this to be shipped with another and knew nothing of a pool car until some weeks later, we cannot accept the sugar unless we are protected.
“If you so desire we will accept this sugar from the freight station and store it until adjustment can be made.”
In reply to this letter, F. Y. Gunn & Company, under date of September 20, 1920, amongst other things, wrote: “It is unfortunate that you have sustained a loss, however, these things cannot be foreseen. The car was consigned to Messrs. E. W. Gates Sons Com-, pany, who are, of course, interested if they have a claim against the railroad company, and if they have, they will enter claim in which event your 110 bags will be included.”
When the sugar arrived «at Chase City on September 18, 1920,' it was not taken out of the depot immediately. On September 24, 1920, the defendant wrote the plaintiffs, saying, amongst other things: “In order to save
There is now pending an action by E. W. Gates & Son Company against the carrier for damages caused by the delay, in which action the claim of the defendant for his losses occasioned by such delay is included.
There was a verdict and judgment for the .plaintiffs for the full amount of their claim, to-wit, $2,305.00, with interest and costs.
There are four assignments of error to the ruling of the trial court in granting and refusing instructions, and one for refusing to set aside the verdict of the jury as contrary to the law and the evidence, and for misdirection.
Counsel for the plaintiff in error (defendant below) developed practically his whole case in the discussion of his objection to instruction No. 1, given for the plaintiffs, which instruction was as follows:
“The court instructs the jury that the contract covering the sale of sugar involved in this ease is embraced in the letters and telegrams shown in evidence that passed between the plaintiffs and the defendant through F. V. Gunn & Company; that said letters and telegrams show that said sale was f. o. b. New York city; and that in said contract the defendant authorized the*100 plaintiffs to ship said sugar through to Richmond in a car lot; and if the jury believe from the evidence that the plaintiffs, within a reasonable time after the order for said sugar was received by them, delivered said sugar to the railroad company in New York city in a car lot with other sugar consigned to E.‘ W. Gates & Son Company, Inc., at Richmond, Va., and at the same time mailed an invoice for said sugar to the defendant, showing shipment in such manner, then the plaintiffs complied with their contract as to the delivery of said sugar and upon such delivery to said railroad company in New York said sugar became the property of the defendant and the plaintiffs are not responsible for any delay thereafter occurring while said sugar was in the hands of said railroad company or its connecting lines.”
The first objection to the instruction is that the court construed the contract between the parties, whereas, under the circumstances, the construction of the contract should have been left to the jury under proper instructions from1 the court.
Where a written contract is clear and unambiguous on its face it is the duty of the court to construe it, whether the contract be contained in a single document or evidenced by several papers. Where the contract is not clear and unambiguous on its face, but is rendered so by extraneous • evidence which has been properly admitted, so that nothing remains to be done except to construe the contract in the light of such extraneous evidence, it is equally the duty of the court and not of the jury to construe it. Licking Rolling Mill Co. v. Snyder & Co., 28 Ky. L. Rep. 357, 89 S. W. 249. But where the language of the contract is not clear and unambiguous, and resort to extrinsic evidence is necessary, if the situation is such that fairminded men might reasonably draw different conclusions there
The rule is -well stated by Judge Kelly in Rickard v. Rickard, 134 Va. 485, 494, 115 S. E. 369; citing numerous cases, as follows: “As a general rule it is the duty of the court and not of the jury to construe written instruments. Burk v. Lee, 76 Va. 386, 388. Where, however, the true meaning of the terms of the instruments depends upon parol testimony as to the effect of which there may be difference of opinion, the question is one for the jury, upon proper instructions, to decide. Camp v. Wilson, 97 Va. 265, 270, 33 S. W. 591; Straus v. Richmond, etc., Co., 109 Va. 724, 729-730, 65 S. E. 659, 132 Am. St. Rep. 937; Walker v. Gateway Milling Co., 121 Va. 217, 227, 92 S. E. 826; Ewell v. Brock, 120 Va. 475, 478, 91 S. E. 761; Warner v. Miltenberger, 21 Md. 264, 83 Am. Dec. 573.”
It is true that in many, probably most instances, the extraneous testimony is conflicting, and this at once renders the case one proper for the decision of a jury. Such was the fact in Camp v. Wilson, 97 Va. 265, 33 S. E. 591; Strause v. Richmond, etc., Co., 109 Va. 724, 65 S. E. 659, 132 Am. St. Rep. 937; Walker v. Gateway M. Co., 121 Va. 217, 92 S. E. 826; and Turner v. Hall, 128 Va. 247, 104 S. E. 861. But it is not necessary that the evidence should be conflicting in order to refer the construction to the jury, it is sufficient if, when all the evidence is in, both written and oral, fairminded men might reasonably arrive at different conclusions. 23 Am. & Eng. Ency. L. (2d ed.) 565.
It is further insisted by counsel for the plaintiff in error, that, even if it was proper for the court to con
The initial proposal for the sale of the sugar was “at twenty-one cents New York.” This proposal was accepted “as per your letter.” The invoice of the sugar dated August 10, 1920, the receipt of which the defendant acknowledged, contained the words, “freight f. o. b. New York,” and at the trial a witness for the plaintiffs was asked: “What does that twenty-one cents New York mean?” and was permitted to answer without objection from the defendant. His answer was, “f. o. b. New York. All sugars are sold f. o. b. the refining point; that is, the sugars that the brokers sell for the refineries.” Upon this evidence uncontradicted, and received without objection, there can be no doubt that the sale, if there was a completed sale, was f. o. b. New York. The meaning of that term is thus defined in Lawson v. Hobbs, 120 Va. 690, 693, 91 S. E. 750:
“A sale f. o. b. ears means that the subject of the sale is to be placed on the ears for shipment without any expense or act on the part of the buyer, and that as soon as so placed the title is to pass absolutely to the buyer and the property be wholly at his risk, in the absence of any circumstances indicating a retention of such control by the seller as security for purchase money, by preserving the right of stoppage in transitu.”
The pool car arrangement, if not expressly authorized, was acquiesced in and ratified by the defendant. In fact, it was first suggested by the defendant. In its letter of July 24, 1920, ordering 110 bags of sugar at twenty-one cents New York, it was said: “This may come through to Richmond in a car lot, and we will appreciate it if you will rush this out to us.” On August
“At any rate whatever that firm will do will be governed accordingly, as the writer knows Mr. Hiram Gates well and believes he will do what can be done to protect both of us.”
It is not denied that suit is now pending against the railroad company to recover damages for the delay, and that defendant’s claim is asserted therein. No objection was made to the “pool ear” shipment until about September 16, 1920, a few days before the arrival of the sugar at Chase City. Moreover, in the petition for the writ of error it is said: “From the time the order was
In 24 Am. & Eng. Ency. L. (2d ed.) 1058, it is said: “To constitute a delivery to a common carrier in this connection the carrier must have accepted the goods in his capacity as carrier, and assumed exclusive custody and control over them, and the consignor must at the same time have parted with and entirely surrendered his possession and control over the same.”
All of these conditions were fully met and complied with in the instant case.
We are further of opinion that this construction was placed upon the contract by the plaintiffs, at least, if not by both parties; that it was acquiesced in by the defendant, at the time the shipment was made and for some time thereafter, and that the defendant is concluded by such acquiescence. Kidwell v. Balto. & O. B. Co., 11 Gratt. (52 Va.) 676.
No question has been raised, nor could there
It is said in the petition for the writ of error: “It was our contention that the place of delivery was omitted from the terms of the contract, and that therefore it was a question for the jury, to be gathered from all the facts and circumstances of the case.” There was no dispute about the facts, and, as we have seen, the place of delivery was fixed by the contract at New York, but if the place of delivery had not been so fixed, the general rule as to goods of this character is, that the place of delivery was the plaintiff’s refinery.
In Benj. on Sales, sec. 682, it is said: “As to the place wher¿ delivery is to be made, when nothing is said about it in the bargain, it seems to be taken for granted almost universally, that the goods are to be at the buyer’s disposal, at the place where they are when sold.” To the same effect, see 2 Kent’s Com. (12th ed.), p. 505; 24 Am. & Eng. Ency. L. (2d ed.) 1069, and 23 R. C. L., p. 1376, sec. 199, noting certain exceptions not necessary to be noticed.
Whether or not parol evidence is admissible to show a different place of delivery from the place where the goods were at the time of the sale, when no place is stated in the contract, is a question upon which the authorities are in conflict. 2 Williston on Contracts, sec. 640.
In La Farge v. Rickert, 5 Wend. (N. Y.) 187, 21 Am. Dec. 209, no place of delivery of portable articles was specified in the contract, and it was held that, by eon
In the uniform sales act, which, however, has not been adopted in this State, it is enacted: “Whether it is for the buyer to take possession of the goods or for the seller to send them to the buyer is a question depending in each ease on a contract, express or implied, between the parties. Apart from any such contract, express or
The plaintiffs were refiners of sugar. The defendant was a wholesale grocer. It is earnestly insisted that, upon the evidence hereinbefore stated, there was no perfected sale of the 110 bags of sugar to the defendant, and that the delivery of them to the carrier did not pass title thereto to the defendant; that there was no such separation and appropriation of these 110 bags to the contract as was necessary to constitute a sale.
Undoubtedly, the general rule, supported by a great array of authority, is as stated in 24 R. C. L., see. 286: “While the sale of the specific chattel may pass the property to the buyer, although no delivery is made, the doctrine established by all the elementary writers on the subject and by the authorities in England and in most jurisdictions in this country, is that where the subject matter of sale is in bulk, and a certain quantity is sold, to be taken from a greater quantity, no title passes until the separation is made.”
But the bulk or greater quantity referred to in the foregoing quotation is manifestly the bulk in the possession and ownership of the seller. When the seller has separated the goods sold from those retained by him, there can be no good reason why several purchases may not, at the request, or with the consent of the buyers, be shipped to them in a single car. It violates no ride of law, and may be greatly to the advantage of the buyers. In the instant case, it appears from the testimony that
We might, perhaps, safely rest our conclusions here, but the general rule above stated is not of universal application. It has been held in Virginia, New York, Connecticut, Kansas, and other States, that where goods are of the same kind or quality, and no selection is required, but only separation from the general mass, title to a part of the mass may pass, if the parties so intend, without awaiting actual separation. Pleasants v. Pendleton, 6 Rand. (27 Va.) 473, 18 Am. Dec. 726; Kimberly v. Patchin, 19 N. Y. 330, 75 Am. Dec. 334; Chapman v. Sheppard, 39 Conn. 413; Kingham v. Holmquist, 36 Kan. 735, 14 Pac. 168, 59 Am. Rep. 604; 24 R. C. L., p. 26, sec. 287, and eases cited in note 2.
Pleasants v. Pendleton, supra, was decided by a court of three very able judges, and each of them delivered a separate opinion. There was no dispute as to the facts of that case, which are briefly stated by eimnsel for the defendants in error (plaintiffs below) substantially as follows: Pendleton sold to Pleasants 119 barrels of flour with certain mill brands on them. The price per barrel of each brand was uniform. The barrels were situated in the warehouse of a third party, The buyer received an order on the warehouseman for the number of bar
It is not practicable to quote from each of the opinions, and we must content ourselves with the following from the opinion of Judge Cabell: “In cases like these, where portions of a larger mass, liquid or solid, are sold, and where the portion sold must be weighed or measured (which of necessity includes the idea of separating them from the general mass), it may be said that the identity and individuality of the part sold must be ascertained by actual separation from its kindred residue, before the sale will be complete to pass the property; or, in other words, before there can be a constructive delivery. But it by no means follows that the same principle applies to cases where the things sold are not portions of a
The opinion, after distinguishing other English cases, relies for support on Jackson v. Anderson, 4 Taunt. 24, where a sale of 1,969 Spanish milled dollars out of a barrel containing 4,718 of such dollars, not separated, was upheld by Chief Justice Mansfield.
In the instant case, the bags of sugar were separate units, each of the same quantity, quality and value, and the delivery of the 110 bags to the carrier passed title to the defendant, even though other like units were delivered to the same carrier to be shipped in the same ear to another buyer.
The case of Ellis & Meyers Lumber Co. v. Hubbard, 123 Va. 481, 96 S. E. 754, cited and relied on by counsel for the plaintiff in error (defendant below), in no way conflicts with the view herein expressed. There the contract was for lumber to be manufactured, and the contract specified when the title was to pass, with a condition subsequent annexed as to inspection, measuring, etc. In the portion of the opinion quoted and relied on, Judge Sims was drawing the distinction between an executory contract for the sale of lumber and an actual bargain and sale-. It was only as to a contract of sale, or as usually expressed a bargain and sale, that it was said that the subject of the contract must be specific. No one ever doubted the validity of an executory contract for the sale of lumber to be manufactured. When the lumber was subsequently manufactured, and set apart and delivered onthe leased premises, according to the terms of the contract, that constituted an'ap
We have discussed the subject of the passing of title as if the loss necessarily followed the title, because in the instant ease the sellers did not claim any lien upon the sugar, or to have withheld the title thereto as a security for the purchase money. They parted with all dominion over it. No question was involved of title in the seller and liability for loss on the buyer, hence counsel on both sides very properly confined their argument to the question whether or not title passed to the buyer, for if it did, under the circumstances of the case, the general doctrine applied, that loss follows the title, res perit domino. But there are eases where the risk of loss follows the possession of the buyer, although the title remains in the seller. This is dependent upon the intention of the parties, which may be express or implied. The intention may be ascertained from the nature of the transaction as well as from the language and'conduct of
Our conclusion is that it was the duty of the court, in the instant ease, and not of the jury, to construe the contract, and that instruction No. 1, given for the plaintiffs, was a proper construction of it.
It is unnecessary to consider the other assignments of error, as what has been said disposes of all the rulings of the trial court on the instructions, and it is said in the petition, “If the court was correct in giving instruction No. 1 * * then there was no error in its action refusing to set aside the verdict and award the defendant a new trial.”
Affirmed.