27 Mich. 324 | Mich. | 1873
The contest in this case relates to a sale of lumber by Eggleston to Lingbam and Osborne, and the question involved is, whether the contract between the parties amounted to a sale in presentí and passed the title, or merely to an executory contract of sale. The lumber, subsequent to the contract and before actual delivery to the
There appears to be very little dispute about the facts. The lumber was piled in Eggleston’s mill yard at Birch Run. In September, 1871, he sold his mill to a Mr. Thayer, reserving the right to leave the lumber in the yard until he disposed of it. To most of the lumber the plaintiff had an exclusive title; but there were four or five piles which he owned jointly with one Robinson. The whole amount was from 200,000 to 250,000, excluding Robinson’s share in the four or five piles. The defendants went to the mill yard September 23d, 1871, and proposed to buy the lumber. Plaintiff went through the yard with them, pointed out the several piles, and designated those in which Robinson had an undivided interest, and also some piles of shingles which they proposed to take with the lumber. After examining the whole to their satisfaction, the defendants agreed upon a purchase, and the following written contract was entered into:
“Flint, September 23d, 1871. Lingham and Osborne bought from O. Eggleston this day, all the pine lumber on his yard at Birch Run at the following prices: For all common, eleven dollars, and to include all better, at the same price; and for all culls, five dollars and fifty cents per M., to be paid for as follows: Five hundred dollars today, and five hundred dollars on the 10th of October next; the balance, one-half on 1st day of January, A. D. 1872, and the rest on the first day of February following; said lumber to be delivered by said Eggleston on board of cars when requested by said Lingham and Osborne, which shall not be later than 10th of November next. Also some shingles at two dollars per M. for No. 2 and four dollars for No. 1.
(Signed) “Lingham & Osborne.
Ohauncey Eggleston, Jr.”
“Holly. Mr. Eggleston: You may load, say ten thousand, if you think best, on each car, nnd we can have it inspected as it is unloaded. I will try and come up tomorrow.
When plaintiff reached Birch Bun the fire was raging all about the mill, and that, with all the lumber in the yard, was soon totally destroyed by fire. Such are the undisputed facts in the case; and upon these the jury were instructed in substance that a completed contract of sale was made out, and the plaintiff was entitled to recover the purchase price.
Where no question arises under the statute of frauds, and the rights of creditors do not intervene, the question whether a sale is completed or only executory, must usually be determined upon the intent of the parties to be ascertained from their contract, the situation of the thing sold, and the circumstances surrounding the sale. The parties
In Blackburn on Sales, 120, the rule on this subject is very clearly and correctly stated as follows: The question, the author says, is “ a question depending upon the construction of the agreement; for the law professes to carry into effect the intention of the parties as appearing from the agreement, and to transfer the property when such is the intention of the agreement; not before. In this, as in other cases, the parties are apt to express their intentions obscurely; very often because the circumstances rendering the point of importance are not present to their minds, so that they really had no intention to express. The consequence is, that without absolutely losing sight of the fundamental point to be ascertained, the courts have adopted certain rules of construction which, in their nature, are more or less technical. Some of them seem very well fitted to aid the court in discovering the intention of the parties; the substantial sense of others may be questioned. The parties do not contemplate a bargain and sale till the specific goods on which their contract is to attach are agreed upon. Where the goods are ascertained, the parties are taken to contemplate an immediate bargain and sale of the goods, unless there be something to indicate an intention to postpone the transference of the property till the fulfillment of any conditions; and when by the agreement the seller is to do any thing to the goods for the purpose of putting them into a deliverable shape, or when any thing is
Upon this general principle there is no difficulty in reconciling most of the reported decisions. And even without express words to that effect, a contract has often been held to be a completed sale, where many circumstances were wanting and many things to be done by one or both the parties to fix conclusively the sum to be paid or to determine some other fact material to their respective rights.
The most important fact indicative of an intent that title shall pass is generally that of delivery. If the goods be completely delivered to the purchaser, it is usually very .strong if not conclusive evidence of intent that the property ¡shall vest in him and be at his risk, notwithstanding weighing, measuring, inspection, or some other act is to be done .afterwards. A striking case in illustration is that of Young v. Mathews, Law R., 2 Exch., 127, where a large quantity of bricks was purchased in kilns. Only a part of
So, if the goods are specified, and all that was to be done by the vendor in respect thereto has been done, the title may pass, though the quantity and quality, and consequently the price to be paid, are still to be determined by the vendee. — Turley v. Bates, 2 H. & C., 200; Kohl v. Lindley, 39 Ill., 195.
And even if something is to be done by the vendor, but only when directed by the vendee, and for his convenience, as, for instance, to load the goods upon a vessel for transportation, the property may pass by the contract of sale notwithstanding.— Whitcomb v. Whitney, 24 Mich., 486; Terry v. Wheeler, 25 N. Y., 520.
But the authorities are too numerous and too uniform to justify citation, which hold that where any thing is to be done by the vendor, or by the mutual concurrence of both parties, for the purpose of ascertaining the price of the goods, as by weighing, testing or measuring them, where the price is to depend upon the quantity or quality of the goods; the performance of those things is to be deemed presumptively a condition precedent to the transfer of the property, although the individual goods be ascertained, and they are in the state in which they may and ought to be accepted.
A learned author from whom we have already quoted, says of this, that “the rule seems to be somewhat hastily adopted from the civil law, without adverting to the great
What then are the facts in this case from which the intent of the parties is to be inferred? The lumber was specifically designated, so that no question of identity could arise. It was not delivered, and the vendor was to place it on board the cars, if desired to do so within a time specified; but as in any event the vendees were to take it at Birch Bun, and it was optional with them to load it on the cars themselves or to have the vendor do it for them, and they had no right to require that he should do so after the day named, we think the circumstance that actual delivery was not made is not one of very much importance-
It will be observed that the contract did not provide-how or by whom the inspection and measurement should be made. It was certainly not the right of either party to bind the other party by an inspection and measurement of his own; it was the right of both to participate, and we must suppose such was the intent, unless something clearly appears in the case to show the contrary. Nothing of that, nature appears in the record except the disputed evidence of defendants, that a person was agreed upon for the purpose. The note sent by Lingham to Eggleston proposing that the eight cars be loaded and that the vendees make the proper inspection, was a mere proposition, and never-acted upon. It is very evident Eggleston was under no obligation to trust this important transaction exclusively to the vendees, and we have no right to infer that he would have done so. It follows that something of high importance remained to be done by the vendor to ascertain the-price to be paid; and as this, under all the authorities, was presumptively a condition precedent to the transference of' the title — nothing to the contrary appearing — the court should have so instructed the jury. The instructions given were in substance directly to the contrary.
It follows that the judgment must be reversed, with costs, and a new trial ordered.