Hutchinson v. Grand Trunk Railway

59 N.H. 487 | N.H. | 1879

Were the ties burned the plaintiff's or Wentworth's? Wentworth contracted with Cole to deliver 100 ties, and with the plaintiff to deliver 150 ties on the line of the road. The defendants were no party to either contract. Wentworth delivered 252 ties in all, or two more than his contracts called for, and notified the plaintiff that he had delivered 152 ties for him, "to which the plaintiff assented." To what did he assent? He made no objection that the number was two in excess of the number bargained for. It does not appear that he was informed that the 152 ties were mingled with other ties. By his contract he was to pay Wentworth for such ties only as should be accepted on inspection by the defendants' agent. It must be understood, we think, that his assent covered such a delivery as would transfer the property in 152 ties to him, if the ties should be accepted by the defendants' inspector. It is not claimed that the whole number of 252 ties was delivered to the plaintiff. What remained, then, to be done, before the property in the ties would pass to the plaintiff, was the separation and setting apart of 152 ties from the whole number. When goods are sold by number, weight, or measure, the sale is incomplete, and the risk continues with the seller until the specific property is separated and identified. 2 Kent Com. 496; Davis v. Hill, 3 N.H. 382; Messer v. Woodman, 22 N.H. 172; Warren v. Buckminster, 24 N.H. 337; Fuller v. Bean, 34 N.H. 290; Ockington v. Richey, 41 N.H. 275; Bailey v. Smith, 43 N.H. 141; Prescott v. Locke,51 N.H. 94, 99; Jenness v. Wendell, 51 N.H. 63, 69; Smart v. Batchelder,57 N.H. 140; Riddle v. Varnum, 20 Pick. 280; Macomber v. Parker, 13 Pick. 175; Foster v. Ropes, 111 Mass. 10.

It is contended that this question is one of intention, and that if the plaintiff and Wentworth intended that the property in the 152 ties should pass to the plaintiff, then it did pass, notwithstanding they had never been separated from the larger number. The intent is to be ascertained, not from the single fact of delivery, but from all the language and conduct of the parties. Fuller v. Bean, 34 N.H. 303; Foster v. Ropes, 111 Mass. 10,16. Wentworth contracted to sell the plaintiff, not 150/250 of 250 ties, but 150 ties. Of the 252 ties delivered, it never was ascertained which were the plaintiff's 150 or 152, and which Cole's 100. The plaintiff's ties never having been separated from the 252, it cannot be determined that the 136 ties burned, or that the 32 ties used by the defendants, were a portion of his 150 or 152. If Cole had refused to accept the ties, the plaintiff could not have maintained an action for his refusal; nor, if the defendants had converted the ties to their own use, could the plaintiff have maintained trover therefor. There was no such delivery as would have prevented Wentworth's creditors from attaching and holding the whole number.

The fact that Wentworth was paid for the ties with supplies furnished from time to time by the plaintiff, does not change this result. They were advances to be applied in payment, after the completion of the contract; and the contract was not completed, because the plaintiff's ties were not separated from the whole number. The defendants are not estopped to deny that the delivery was complete. They took no part in the settlement made by Cole with Wentworth, and had no interest in either of his contracts.

Judgment for the defendants.

STANLEY, J., did not sit: the others concurred.