Johnson v. Hibbard

44 P. 287 | Or. | 1896

Opinion by

Mr. Justice Wolverton.

In the sale of articles or goods to be manufactured it is clear that no title passes to any specified articles or designated lot of- goods until their manufacture is completed, and they, by the understanding and consent, express or implied, of the parties to the sale, have been selected or designated, and set apart to the purchaser. The contract for such a sale, like a contract for the sale of goods not specified, is executory in its nature, and it does not become a complete bargain and sale until the identical goods to which the contract is to attach are specified or appropriated to its purposes. It seems the only question that there is any difficulty in determining is as to when the appropriation takes place. Where a simple order is given to a dealer for goods of certain quality and quantity, there is an implied assent that the dealer shall make the selection, and the exact point in the act of making such selection when the dealer is no longer at liberty to change his intention may be designated as the time when the title vests in the purchaser. Mr. Benjamin says: “The rule on the subject of election is that when, from the nature of an agreement, an election is to be made, the party who is by the agreement to do the first act, which, from its nature, cannot be done till the election is determined, has authority to make the choice, in order that he may be able to do that first act, and when once he has done that act, the election has been irrevocably determined, but till then he may change his mind”: Benjamin on Sales, § 359. Applying the rule to the case at bar the title would pass when the goods were manufactured and delivered to the common carrier consigned to the defendant, if made as ordered, and especially would it be so when received by the consignee: Merchants’ National Bank v. Bangs, 102 Mass. 295; Brewer v. Michigan Salt Association, 47 Mich. 526 (11 N. W. 370); Martz v. Putnam, 117 Ind. 392, 400 (20 N. E. 270). There is some conflict in the authorities as to whether the same rule applies to a sale of goods to be manufactured as to a sale of goods not specified, but it is believed the weight of authority is in favor of the doctrine that it is alike applicable to the one case as to the other: 21 Am. and Eng. Ency. of Law, 494, 505. But, in order that the title may pass at this juncture of the transaction, the goods must conform as to quantity and quality with the specifications of the order. Seo Brigham v. Hibbard, 28 Or. 386 (43 Pac. 383). If they did not so correspond, then an acceptance by the purchaser would be necessary to complete the sale, otherwise not. This case seems to have been tried in the court below upon the theory that the goods did not fill the measure of the order, as it would appear to have turned upon the question as to whether there had been an acceptance by the defendant. He does not question the plaintiff’s contention that the facts show an unqualified acceptance of the first shipment, but claims the evidence does not warrant a finding that the last consignment was so accepted. It was argued that the court should have distinguished between the two consignments upon the question of acceptance, but no such instruction was asked for, and no error can therefore be predicated upon the court’s failure in that respect. We think the court properly instructed the jury touching the question of acceptance, and we cannot see that the limited portion of the instruction excepted to does in any manner cast the burden of proof upon the defendant to show nonacceptance, which is the burden of appellant’s contention. Finding no error in the record, the judgment of the court below is affirmed. Affirmed.