5 N.Y. 330 | NY | 1859
Both parties trace their title to the wheat in controversy to D. O. Dickinson, who was the former owner, and held it in store at Littlefort, Wisconsin. The defendant claims through a sale made by Dickinson to one Shuttleworth on the 18th of February, 1848. If that sale was effectual to pass the title, it is not now pretended that there is any ground on which the plaintiffs can recover in this suit. The sale to the person under whom they claim, was about two and a half months junior in point of time.
The sale to Shuttleworth was by a writing in the form of a present transfer of six thousand bushels of wheat, at seventy cents per bushel. Ho manual delivery was then made, but instead thereof the vendor executed and delivered to the vendee another instrument, declaring that he had received in store the six thousand bushels subject to the vendee’s order; of the
The quantity of wheat in store to which the contract related, was estimated by the parties at about six thousand bushels. But subsequently, after Dickinson made another sale of the same wheat to the party under whom the plaintiffs claim, it appeared on measurement that the number of bushels was six thousand two hundred and forty-nine, being an excess of two hundred and forty-nine bushels. When Shuttleworth bought the six thousand bushels, that quantity was mixed in the storehouse with the excess, and no measurement or separation was made. The sale was not in bulk, but precisely of the six thousand bushels. On this ground it is claimed, on the part of the plaintiffs, that in legal effect the contract was executory, in other words a mere agreement to sell and deliver the specified quantity, so that no title passed by the transaction. It is not denied, however, nor does it admit of denial, that the parties intended a transfer of the title. The argument is, and it is the only one which is even plausible, that the law overrules that intention, although expressed in plain written language, entirely appropriate to the purpose.
It is a rule asserted in many legal authorities, but which may be quite as fitly called a rule of reason and logic as of law, that in order to an executed sale, so as to transfer a title from one party to another, the thing sold must be ascertained. This is a self-evident truth, when applied to those
But property can be acquired and held in many things which are incapable of such an identification. Articles of this nature are sold, not by a description which refers to and distinguishes the particular thing, but in quantities, which are ascertained by weight, measure or count; the constituent parts which make up the mass being undistinguishable from each other by any physical difference in size, shape, texture or quality. Of this nature are wine, oil, wheat and the other cereal grains, and the flour manufactured from them. These can be identified only in masses or quantities, and in that mode, therefore, they are viewed in the contracts and dealings of men. In respect to such things, the rule above mentioned must be applied according to. the nature of the subject. In an executed and perfect'sale the things sold, it is true, must be ascertained. But as it is not possible in reason and philosophy to identify each constituent particle composing a quantity, so the law does not require such an identification. Where the quantity and the general mass from which it is to be taken are specified, the subject of the contract is thus ascertained, and it becomes a possible result for the title to pass, if the sale is complete in all its other circumstances. An actual delivery indeed cannot be made unless the whole is transferred to the possession of the purchaser, or unless the particular quantity sold is separated from the residue. But actual delivery is not indispensable in any case in order to pass a
' It appears to me that a very simple and elementary inquiry lies at the foundation .of the present case. A quantity of wheat" being in store,-is. it-possible in. reason and in law for-one man to own a given portion of-it and for another man to own the-residue without a separation of the parts ? To bring the inquiry to the’facts of the case: in the storehouse, of Dickinson there- was a quantity not precisely known. In any conceivable circumstances could Shuttleworth become owner of six thousand bushels, and Dickinson of the residue, which ’turned out to be two hundred and forty-nine bushels, without the portion of either being divided from the other? The answer to- this inquiry is plain. Suppose a third person, being the prior owner of the whole, had given to S. a bill of sale of six thousand bushels; and then one to D. for the residue more or less, intending to pass to each the title, and expressing that intention in plain words, what would have-been the result? ■The-former, owner, most certainly would have parted with all his title. -If;.then, the two purchasers did not acquire it no one could own the wheat, and the title would be lost. This would be an.absurdity..-.Buf if the parties thus purchasing.could and would be the owners, how would-they hold it? . Plainly according to their contracts. - One would be entitled to six thousand;búshels, and the other to what remained after that ■quantity was substracted.
Again suppose, Dickinson having in store and owning two-hundred and forty-nine bushels, Shuttleworth had deposited with him six thousand bushels for storage merely, both parties agreeing, that the quantities might be mixed. This would be a case-of confusion of. property where neither would lose his title.- In the law of bailments it- is entirely settled that S:, being the bailor of the six thousand bushels, would lose nothing by the mixture, and, it being done by consent, it is also clear that the bailee would lose nothing. (Story on Bailments, § 40; 2 Bl. Com., 405.)
There are in the books a considerable number of cases having a real or some apparent bearing upon the question under consideration. Some of them very unequivocally support the defendant’s title under the sale to Shuttleworth. A few only of these will be cited. In Whitehouse v. Frost (12 East., 614), the vendors owned forty tons of oil secured in one cistern, and they sold ten tons out of the forty, but the quantity
Referring now to cases where it has been held that sales of this general nature were incomplete, it will he found that they are not essentially and necessarily opposed to the conclusion that, in the instance before us, the title was changed. In White, assignee, &c., v. Wilks (5 Taunt, 176), a merchant sold twenty tons of oil out of a stock consisting of different large quantities in different cisterns, and at various warehouses. The note of sale did not express the quality or kind of oil sold, or the cistern or warehouse from which it was to be taken, and the purchaser did not even know where the particular oil lay which was to satisfy the contract. Very clearly the title could not pass upon such a sale; and so it was held, although the seller was entitled by the contract to charge “ Is. per ton per week rent,” for keeping the oil. A very different
In Austen v. Craven (4 Taunt., 644), there was a contract to sell two hundred hogsheads of sugar, to be of four different kinds and qualities which were specified. It did not appear that the seller, at the time of the contract, had the sugar on hand, or any part of it, and the fact was assumed to be otherwise. The sale was, moreover, at so much per cwt., requiring that the sugar should be weighed in order to ascertain the price. In these circumstances the case was considered plainly distinguishable from Whitehouse v. Frost (supra), and it was held that the'title did not pass. I do not see the slightest ground for questioning the decision, although, perhaps, one or two remarks of Chief Justice Mansfield are capable of a wider application than the facts of the case would justify.
The two cases last mentioned have been not unfrequently cited in various later English and American authorities, which need not be particularly referred to. Some of these authorities may suggest a doubt whether the title passes on a mere sale note by measure or weight out of a larger quantity of the same kind and quality, there being no separation and no other circumstances clearly evincing an intention to vest the title in the purchaser. It is unnecessary now to solve that doubt, because none of the decisions' announce the extreme doctrine, that where, in such cases, the parties expressly declare an intention to change the title; there is any legal impossibility in the way of that design. Upon a simple bill of sale of gallons of oil or bushels of wheat, mixed with an ascertained ’and defined larger quantity, it may or may not be considered that the parties intend that the portion sold shall be measured before the purchaser becomes invested with the title. That ' may be regarded as an act remaining to be done, in which
I repeat it is unnecessary to refer to all the cases, or to determine between such as may appear to be in conflict with each other. Hone of them go to the extent of holding that a man cannot, if he wishes and intends so to do, make a perfect sale of part of a quantity without actual separation, where the mass is ascertained by the contract and all parts are of the same value and undistinguishable from eachbther.
One of the cases, however, not yet cited, deserves a brief consideration, because it was determined in this court, and has been much relied on by the plaintiffs counsel. I refer to Gardiner v. Suydam (3 Seld., 357). The owner of flour delivered it in various parcels to a warehouseman, and from time to time took receipts from him. One of these receipts was held by the defendants and others by the plaintiff, both parties having accepted and paid drafts on the faith thereof. The defendant’s receipt was the first in point of time, and was for five hundred and thirty-six barrels, being given at a time when in fact there were but two hundred and one barrels in the warehouse, so that it covered three hundred and thirty-five
j We are of opinion, therefore, both upon authority and clearly upon the principle and reason of the thing, that the
The judgment must be reversed and a new trial granted.
Gray and Grover, Js., dissented; Strong, J., expressed himself, as inclined to concur, if necessary to a decision, but it being unnecessary, he reserved his judgment.
Judgment reversed and new trial ordered.