104 N.W. 515 | N.D. | 1905
Action for the purchase price of seventy bushels of flax. The question involved is whether the transaction involved constituted a sale or a contract for sale, and whether the title to the flax passed to the defendant or not. The facts are as follows: Defendant wrote plaintiff, asking him whether he bad some flax for sale. Plaintiff answered by letter, saying that he had seventy bushels of flax for sale. Defendant immediately answered plaintiff’s letter, and asked him whether the flax was clean, and how much he wanted for it. This letter was answered, and in the answer plaintiff stated that the flax was clean, and -that his price for it was $2 per 'bushel. Defendant then wrote plaintiff as follows : “I will take the seventy bushels of flax you have on your Ops farm at $2 per bushel for seed. Kindly keep it for me and oblige. Yours very truly, W. C. Leistikow, by J. Dunn.” Plaintiff, upon receipt of the above letter, sent the defendant a written order upon his son, with whom the flax was stored, to> let the defendant have seventy bushels of flax, and in two or three days thereafter sent the defendant a bill for the price of the flax, $140. After the receipt of thi-s bill, and on May 26, 1902, the defendant wrote the plaintiff another letter, in which he acknowledged the receipt of the bill, and stated that he had sold the farm upon which he intended to use the flax for seed, and for that reason had no use for the flax, but stated' that he would “take the flax if you [plaintiff] insist on it.” He further stated that, if plaintiff could place it with others, it would be an accommodation to him, and asked plaintiff to notify him if he could not place the flax with others, and he would send a team for it. The letter further stated that one Copps, the bearer of the letter, would like some of the flax, and plaintiff was told in the letter: “And you oan give him whatever he may want out of this lot.” Upon receipt of this letter the plaintiff drew upon Leistikow through the bank for $140, and did not in any other way answer the letter. The draft was returned unpaid. About May 6th the defendant, through his authorized agent, wrote his name on the back of the order which the plaintiff had
The errors assigned pertain solely to the direction of a verdict and the' refusal to grant a new trial. The only question to be decided is whether the title to the flax passed to Leistikow under the facts narrated. If the title did not pass to him, an action for the purchase price will not lie. The -defendant’s contention is that title did not pass, for the reason that the seventy bushels of flax were not separated from the mass with which- they were mingled. It is conceded that there were about eighty-five and a half bushel-s of flax by measure, and about seventy-four bushels- by weight, in the pile. I-t is undisputed that the flax was all of one quality and grade, and fit for seeding -purposes. Was a separation from the mass, or the measuring of the seventy -bushels, a condition precedent to the passing of the title to the defendant? We agree that it was not. There was a sale of the flax. It was not an executory contract for the sale thereof. The price was not paid, but that is not necessarily a condition precedent to the passing of title. The payment of it may be waived or it may be insisted on. The flax was in bulk, but its separation is not necessarily a condition- precedent to the passing of title. Whether the title passes or not under such circumstances depends upon the intention of the parties, to be gathered from the terms and conditions of the contract and
The order is affirmed.