247 Mass. 142 | Mass. | 1923
The plaintiffs sued to recover the amount due from the defendants on account of the sale of three piles of mixed iron as specified in the following writing or memorandum:
“ Bo’t of S. Kepnes & Son three (3) piles of mixed iron at one dollar and ten cents per hundred ($1.10 per cwt.), this to be free from fight and spruce [sprue] iron.
“ All iron is to be taken out within two months of date. No iron is to be left.
“ Five hundred dollars is to be given when load is taken. After $500.00 worth of iron is taken out, another check for $500.00 will be given and so until the whole amount of iron is taken out.
“ The note for $1000. is to be returned when the last load of iron is taken out.
Jacob Grossman
Joseph Grossman.”
It was undisputed that the defendants removed about thirty tons of iron. The evidence was conflicting whether there was in fact any fight iron or sprue iron in the three piles. If the witnesses for the plaintiffs were believed, there was none; but the defendant Jacob Grossman testified that he saw some in one pile, and agreed to buy the iron if the clause, “ free from fight iron and sprue iron,” should be inserted in the contract. Experts introduced by the plaintiffs testified to the existence of “ an old, long established, clearly defined, universally known and followed, general custom and usage to the effect that in a sale of piles of ‘ Mixed iron, this to be free from fight iron and spruce iron/ as in the agreement . . . the buyer should while taking away his team loads from the piles of iron, sort out and discard any light iron and sprue iron, which might be in the pile, weigh up the mixed iron, and pay for all mixed iron according to weight, and that such a clause did not mean that there was nd fight iron or sprue iron in the piles.”
There was a verdict for the plaintiffs. The exceptions are to the refusal of the trial judge to give four rulings requested by the defendants (numbered 1, 3, 6 and 8), in so far as they were not given in the charge. Requests 1 and 3 raise the questions whether the defendants were entitled to a ruling that, as matter of law, (1) the title to the iron did not pass at the time of the signing of the contract; and
In the early case of Riddle v. Varnum, 20 Pick. 280, where there was a contract for the sale of a quantity of timber at a certain price per thousand feet, and there had been no survey or measurement at the time when it was attached as belonging to the seller, the question arose as to the passage of title. Dewey, J., speaking for the court, said (page 283, 284) “ The general doctrine on this subject is, undoubtedly, that when some act remains to be done in relation to the articles which are the subject of the sale, as that of weighing or measuring, and there is no evidence tending to show an intention of the parties to make an absolute and complete sale, the performance of such act is a prerequisite to the consummation of the contract; and until it is performed, the property does not pass to the vendee. But in the case of sales where the property to be sold is in a state ready for delivery, and the payment of money, or giving security therefor, is not a condition precedent to the transfer, it may well be the understanding of the parties, that the sale is perfected, and the interest passes immediately to the vendee, although the weight or measure of the articles sold remains yet to be ascertained. Such a case presents a question of the intention of the parties to the contract. The party affirming the sale must satisfy the jury, that it was intended to be an absolute transfer, and all that remained to be done was merely for the purpose of ascertaining the price of the articles sold, at the rate agreed upon.” The court held that the jury would have been warranted in finding that it was the intention of the contracting parties to make the sale of the articles complete and absolute before the measure of them was ascertained.
The doctrine stated in Riddle v. Varnum is recognized in Denny v. Williams, 5 Allen, 1, 3, 4; and is said in Wesoloski v. Wysoski, 186 Mass. 495, 497, to be the settled law in this Commonwealth. In that case the onions in a warehouse were to be screened and weighed before the passing of title. In John B. Frey Co. v. S. Silk, Inc. 245 Mass. 534, where
There was evidence entitling the plaintiffs to go to the jury on the issue whether the parties intended that title to the iron should pass at the time of signing the contract. The defendants were experienced dealers in junk. There was testimony that they had seen the three piles of mixed iron accumulating, and that two days before the purchase they “ climbed up on the piles and over the piles and around the piles and looked at them all over from the sides and over the top; ” and that the weight could be estimated from the size of the piles. The language used, “ Bo’t of S. Kepnes & Son,” while not conclusive, is indicative of a completed sale. See Sherwin v. Mudge, 127 Mass. 547. There was a payment of $500 when the first load was taken; and a note for $1,000, presumably given as security, as stated in the alleged copy attached to the declaration. Accordingly the judge rightly refused to give the first and third requests; and these issues were submitted to the jury, under instructions to which no exception was taken. It is plain that the sixth and eighth requests could not be given, in view of the evidence, espe
Exceptions overruled.