Godfrey v. Germain

24 Wis. 410 | Wis. | 1869

DixoN, C. J.

If the right of the plaintiff to maintain this action depended solely upon the effect to be given to the written contract under which he claims title, the question presented would be a very nice and difficult one. It would then have'to be decided whether the contract was executory or executed on the part of the vendor; whether it operated as a present sale of the wheat and oats in the granary of the vendor, or was a mere agreement or promise on his part to sell and deliver so many bushels of wheat and oats within the time fixed. The payment of- the price by the purchaser, as recited in the contract, and the words “hereby sell and convey,” imply that a sale or transfer in presentí was intended. On the other hand, the absence of any words in the contract specifying the particular subject of the sale, or that it was the wheat and oats in the vendor’s granary, seem to imply very strongly that a present sale or transfer of title was not intended. It also appears in evidence that the parties were not present at the place where the wheat and oats were when the contract was made; that the purchaser never saw them; that they were never pointed out to any one, or set apart as his ; and that no delivery, formal or otherwise, was ever attempted to be made. It may be, under these circumstances, that the payment of the consideration, as recited in the contract, and the use of the words implying that an immediate transfer was intended, ought to be held to create such doubt as to its proper construction that parol testimony was admissible to show what the parties did actually intend. Or it may be that the contract ought to be held on its face and by its very terms executory, in which event no title would pass before delivery of the grain to the purchaser, and parol evidence would be inadmissible to explain, vary, modify or enlarge it. In determining this question, a fair test would be to suppose the wheat and oats in the granary of the vendor to have been accidentally destroyed by fire after the making of the contract and before the time fixed for the delivery, and then, to inquire upon whom, by the terms of the contract, the loss would have fallen — whether on the vendor or the purchaser ; and if on the vendor, whether he would have been allowed to shift the loss over upon the purchaser by the introduction of parol evidence of the kind which was here received. Or, again, to inquire, supposing, within the time fixed for the delivery, the vendor had delivered or tendered to the purchaser, at his warehouse, other wheat and oats of the quantity, quality and description called for by the contract, whether the purchaser could have refused to accept the same, and have sued the vendor and recovered back the purchase-money, on the ground that the wheat or oats delivered or tendered were not the specific wheat and oats which were in the granary of the vendor at the time the contract was entered into. If the purchaser could not have so refused, or if he could not have been permitted to introduce parol evidence to show that the wheat and oats in the granary were intended, then it would appear that the contract was executory, and not executed, on the part of the vendor, and that no title passed to the purchaser. The rule laid down in the books is, that the contract amounts to an actual sale, if the specific thing is agreed on, and is ready for immediate delivery; but that the contract is only executory when the goods have not been specified, or if, when specified, something remains to be done to them by the vendor, either to put them into a deliverable shape, or to ascertain the price. Benjamin on Sales, 213-216.

The case of the “ one ton of brass wire,” 7 Met. 354, cited by counsel for the plaintiff, where parol evidence was received to identify the subject of the contract, was that of a chattel mortgage of the property thus generally described. In a case of that kind, where the contract can. only take effect as to the property which the mortgagor owns at the time of making it, there would seem to be much stronger ground for presuming that the parties intended such application than in a case like this, where an agreement to sell, not an actual sale, is equally valid in law, and may as well be made, with respect to property not yet belonging to the vendor, and which he may afterward acquire, as with respect to property which he owns at the time. Benjamin on Sales, 58, 59. Besides, it appeared in that case that the mortgagee, a day or two after the execution of the mortgage, went to the place where the wire was, and that it was there pointed out to him by the mortgagor as the wire mentioned in the mortgage.

If the contract in question was, by its terms, executory, then, as already said, the principle is plain that forbids the introduction of parol evidence to change it from a contract of that nature to one which was executed. This point was directly ruled in Fitch v. Archibald, 29 N. J. Law R. (5 Dutch.) 160, and is recognized as correct in Terry v. Wheeler, 25 N. Y. 523.

But, because the true construction of the contract may be considered a matter of so much doubt, it cannot but be regarded as fortunate that the record presents another question of a more decisive character, upon which this action may be decided, and which must have been conclusive, had no other question been presented. We refer to the question of fraud. We think, upon the evidence disclosed by the record, that the contract was clearly proved to have been fraudulent and void as against the creditors of the vendor. The circumstances attending the making of the contract; the knowledge of the plaintiff that the trial of the slander suit was then progressing before the court, and might result in a large verdict against Isham; the buying of the grain without the same having been seen by the plaintiff, or his knowing in fact that Isham had it; the general nature of the contract, no specific wheat and oats being mentioned; the absence of any effort or intention to deliver or take immediate possession ; the fact that the contract was an nnnsnal one, and snch as the plaintiff, in his business, was not accustomed to make; the payment of the money over to Isham, and then his immediately paying or handing back the larger part of it, thus converting the alleged payment into a matter of mere form; all these were circumstances of a most extraordinary and suspicious character, and, without the testimony of the defendant Lewis, which would seem to leave no doubt, must serve to mark the transaction with bad faith, and show that it was not binding upon creditors.

By the Qourt. — The judgment of the circuit court is reversed, and the cause remanded, with direction that judgment be rendered in favor of the defendants and against the plaintiff, for the costs of suit.