63 Me. 553 | Me. | 1874
Lead Opinion
This is an action of trover for the alleged conversion, by the defendants, of a quantity of coal belonging to the plaintiff.
It is in proof that on the eighth day of July, 1869, the firm of William Wallace & Co., shipped from Baltimore, Md., to Gardiner, Maine, consigned to their own order, two hundred and fifty tons of coal. The coal arrived at Gardiner, and was there sold to the parties to this suit.
The defendants claim that they purchased half of the cargo, and the plaintiff half; that the coal was left on Gay’s wharf in bulk, in one pile; that no division was made, while it so remained on the wharf; that the mode of division agreed upon was, that each was to take one hundred and twenty-five tons net from the ■ pile, and the remainder was to be equally divided between them; that the plaintiff took over one hundred and twenty-five tons net, and the defendants one hundred and twenty tons net and some odd pounds. Upon this state of facts it is obvious that the plaintiff, who has received more than his share, cannot recover anything of the defendants, who have had less than their share.
According to the plaintiff’s statement of the case, he was to have one hundred and twenty-five tons gross, and, after he had
The coal, while in bulk and remaining on the wharf, and before it was weighed and delivered, was the property of William Wallace & Co. There was weighed and delivered to the plaintiff one hundred and twenty-five tons net. With this coal, the defendants have no right to interfere. The residue of the coal, until it was weighed and delivered, belonged to the shippers.
It is a fundamental principle, pervading everywhere the doctrine of sales of chattels, that if goods be sold by number, weight or measure, the sale is incomplete, and the risk continues with the seller, until the specific property be separated and identified. 2 Kent’s Com., 496. While the coal remained in bulk, and before separation and weighing, there was no specific portion, which belonged to the plaintiff. The title did not vest in him until a separation had taken place. Such seems to be the uniform result of the authorities on this subject. In Rapelye v. Mackie, 6 Cowan, 251, it was decided that when anything remains to be done, as between buyer and seller, or for the purpose of ascertaining either the quantity or price of the article sold, there is no delivery, and the property does not pass, though the price be in part paid; and that, if there be a part delivery, the other part, not yet ascertained, will not pass. The same doctrine was fully affirmed in Scudder v. Worster, 11 Cush., 573; and in Houdlette v. Tallman, 14 Maine, 400; Bailey v. Smith, 43 N. H., 141; Gibbs v. Benjamin, 45 Vt., 126. The cases, in which it has been held on a sale of a specified quantity of an article, as of grain, that its separation from a mass indistinguishable in quality or value, in which it is included, is not necessary to vest the title, have been determined upon principles not at all inconsistent with those already advanced. Thus in Kimberly v. Patchin, 19 N. Y., 330, the owner of wheat lying in a mass in his warehouse, sold a specified portion thereof for an agreed price, and executed to the vendee a receipt acknowledging himself to hold the wheat subject to the vendee’s order, and the title was held
But in the case at bar, the vendor gave no receipt for the coal, nor was there any payment therefor, nor any bill of sale given until August 18, 1869, which was long after the defendants had received their part of the coal. The vendors, "Wallace & Co., could not be regarded as bailees of the plaintiff, for he had not paid them for the coal, nor had they given him any receipt by virtue of which they might be so regarded. Nor, indeed, had they even given him a bill of sale of the coal, before the quantity taken by the defendants had been weighed out to, and been removed by them.
The result is, that upon the facts as proved by the plaintiff, or by the defendants, the plaintiff has title only to the coal weighed out, and delivered to him, and to no more. The verdict, manifestly, was for coal, the title to which had not passed to the plaintiff.
Motion sustained.
Dissenting Opinion
dissenting.
This is an action of trover to recover the value of the difference between one hundred and twenty five tons of coal gross weight, and the same number of tons net weight. The plaintiff received one hundred and twenty-five tons of the coal net, and was prevented by the defendants, as he claims, .from removing the balance. The case is presented on a motion to set aside the verdict as against evidence, and the weight of evidence, and on exceptions.
The defendants denied that they prevented the plaintiff from taking more of the coal, and claimed that subsequently to the plaintiff’s purchase, they boxxght one half Of the cargo, consisting in all of two hundred and fifty tons; that their purchase was not made subject to the precedent right of the plaintiff to take away one hundred and twenty-five gross tons, and that the terms of division agreed upon were, that either party should take one hundred and twenty-five tons net, and then stop, until the other should take that amoxxnt, and that they should then divide the loss or gain. In other respects the evidence introduced by the defendants did not materially conflict with the plaintiff’s evidence.
In returning a verdict for the plaintiff, the juxy must have foxxnd that at the time of the alleged conversion of the coal by
Mr. Long, in his treatise on sales, says : “Three particulars are included in a valid sale, namely, a thing which is the subject of it, a price and a consent of parties......The thing sold must-be specific, or ascertained; the price must be certain, or ascertainable by reference to some criterion by which it may be fixed; and there must be a consent of the parties upon the thing sold, upon the price, and upon the sale itself.” The general and inflexible rule is that where, by the terms of the contract, anything remains to be done by both parties, or by either, precedent to delivery, the title does not pass; the contract is executory and incomplete, as a sale, and not executed and perfected. But, say the court in Kimberly v. Patchin, 19 N. Y., 333, “actual delivery is not indispensable in any case in order to pass the title, if the thing to be delivered is ascertained, if the price is paid, or credit given, and if nothing further remains to be done in regard to it.” In other words, all the requisites of a valid sale may exist without a delivery. “In the case of sales where the property 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,” remarks Dewey, J., in Riddle v. Varnum, 20 Pick., 283, “that the sale is perfected, and the interest passes immediately to the vendee, although the measure, or weight of the articles sold, remains to be ascertained.”
These principles of law applied to the facts in the case at bar make the sale of the coal sued for to the plaintiff executed and complete, and show the title thereto to have been in him at the time of its alleged conversion by the defendants. In view of the evidence in the case, it does not admit of denial that the parties to the alleged sale intended that the title to the coal should be transferred to the plaintiff; their mutual consent to the sale, the one to sell and the other to buy the coal, is unquestionable. The kind and quantity
Though the sale was of a certain number of tons of coal, the article was in bulk, undistinguishable from the surrounding mass from which it was bought. Eor this reason, it is argued that the coal was not sufficiently identified to pass the title to it, because it was not all weighed. But how could weighing the coal render the quantity sold more clear and unmistakable ? The plaintiff bought one hundred and twenty-five gross tons ; there was nearly twice that quantity in the heap out of which he made the purchase; weighing the coal could not increase or diminish the quantity bought; that was necessary, not to ascertain the quantity bought — which had already been done — but to determine when the plaintiff had taken from the pile the quantity that had been sold him. Nor was the weighing nécessary to fix the price of the coal, since that also had already been agreed upon by the parties. If, as in Simmons v. Swift, 5 B. & C., 857, it had been agreed between the parties that the coal should be weighed by two persons, each party to name one, in order to fix the price, and this had not been done; or, as in Gibbs v. Benjamin, 13 Law Reg., 95, the parties had not agreed upon the quantity sold, a different result would follow — as the contract would not have been complete; but nothing of the kind occurred in the case at bar; the parties by the terms of the contract of sale, having fixed the quantity and price of the coal, these could be no better known or identified after the coal had been weighed than they were before. The plaintiff knew what he bought, and bought what he knew, before he weighed it.
It has been seen that in the case at bar the “sale was complete in all its other circumstances.” It is the same in principle with Waldron et al. v. Chase, 37 Maine, 415. In that case, the corn was paid for when the sale was effected ; in this case, that was done in the first instance which was equivalent to payment — a credit was given, and the whole amount was paid for according to agreement a long time before the alleged conversion by the defendants; in both cases a part’of the article sold was separated by the purchaser from the surrounding mass. In that case it was held that where the owner of a quantity of corn in bulk sells a certain number of bushels therefrom, and receives his pay, and the vendee takes away a part, the property in the part sold vests in the vendee, although it has not all been measured or separated from the heap.
The court in that case expressly recognized the fact that there ÍS' a conflict of authorities, both English and American, upon this sub
Our conclusion is that the jury were authorized by the evidence in finding that all the requisites of a valid sale of one hundred and twenty-five tons gross by the owner to the plaintiff had been complied with, and that the title to that amount was vested in him when the defendants interposed to prevent his removing the balance of that quantity. The assertion and acts of ownership on the part of the defendants in respect to all the coal remaining in bulk, and especially their refusal to allow the plaintiff’s teamster to remove more of it, make out a clear case of conversion.
I do not understand that the learned counsel for the defendants seriously controverted the correctness of the instructions to the jury. However this may be, he has no legal ground of complaint, as they were quite as favorable to the defendants as the law of the case admits.