27 Va. 473 | Va. | 1828
The Judges delivered their opinions.
The Appellee sued the Appellant in Assumpsit, on a .contract for so much flour sold. had several counts, some special, some general. The Jury found a general verdict for the Plaintiff for @416 50, on which Judgment was rendered. On a subsequent day of the Term, the Counsel for the Defendant, with the consent of the opposing Counsel, tendered a Bill of Exceptions to sundry opinions of the Court, given on the trial. The Bill sets out at large what the evidence was intended to prove, and on this statement, several motions for instruction to the J ury are predicated. But one of them was the subject of discussion at the Bar, and to that
On the 20th March, 1820, the Appellee sold to the Appellant one hundred and forty-one barrels of fine flour, with certain mill brands on them, according to a list stating the number of barrels of each brand. The price was $3 50 cents per barrel. The flour was stored in the warehouse of J. fy J. Fisher. The Plaintiff received from the Defendant a check on the Virginia Bank for the full amount of the price, and executed and delivered to the Defendant an order for the flour on the warehouse man. In the evening of the same day, the Plaintiff finding that he had mistaken the number of barrels, sent a corrected list to the Defendant, reducing the number to one hundred and nineteen barrels. Upon this, the order and check were given up, and'a new contract made, by which the one hundred and nineteen barrels of flour, according to the list, were sold by the Plaintiff to the Defendant for the same price, amounting to $415 50 cents. For this sum the Defendant gave the Plaintiff a check on the Virginia Bank, and the Plaintiff gave a receipt in full, and an order for the flour. The bill of parcels, (describing the flour very minutely,) and the receipt, are set out at large. This last agreement was made, (to say the latest,) about five o’clock in the evening. It is the usage of the Banks of Richmond, well known to merchants and others dealing with them, not to pay checks after 3 o’clock, P. M. At the time of the sale, the Plaintiff had in the same store-house about three hundred barrels superfine flour, and there were there also between two and three thousand barrels, belonging to others, of different qualities and brands, but none other but the Plaintiff’s with the same brands as the one hundred and nineteen barrels. At the time of giving the order for the flour, there ' was a considerable fall of rain, which continued till night At the time of the sale the Plaintiff had in fact four more barrels of fine vflour than he sold to the Defendant in the same house, and of the «ame brands, to wit: two of Rose's and two of Pedlar's brand. Except this, the list corresponded exactly with the fine flour which the [Plaintiff had in Fishers’ store-house, both in number and brands. 'Between barrels of fine flour of the same brand, there is no difference in price. On the morning of the 21st March, the warehouse accidentally took fire, and was burnt, together with the check for
We are to consider whether, taking all these facts as proved to the satisfaction of the Jury, the Court properly instructed thorn, that the Plaintiff ought to recover in this action, remarking by the way, that the instruction touches no matter of fact, but matter of law sold}'; that it does not speak of the recovery, as to amount, or quantity, but merely as to the t'igkt: “that the Plaintiff, (if the3r believed the evidence) had a right to recover,” so that if lie have’ a right to recover any part of his demand, the Court was right, and It remained for the Jury to settle the amount.
The great question is, to whom did the flour belong when burnt, for the owner must bear the loss. Was the contract so complete as to pass the property? We will consider this, first, upon the general principles which regulate contracts of sale; secondly, upon the usage found, that flour passes from hand to hand, by the transfer of the order, without the actual delivery of possession.
1st. To charge on a contract of sale, and put at the risk of the vendee, a constructive delivery is enough. An actual delivery, neither in law, nor in fact, is required. It is only necessary that it be such as to pass the entire right of property. A symbolical delivery, as the key of a warehouse where the goods are deposited, will pass them to the vendee. 1 Atk. 171; 1 East. 195; 3 John. Rep. 395.
The doctrine of stoppage in transitu,, must be cautiously applied to the case before us. It is established Law in England, that if goods bo consigned to a merchant, and when they reach him he has become bankrupt, they go to his assignees, though the consignor should remain wholly unpaid, and though when he consigned them, he considered his correspondents to be in good credit. The harshness and injustice of this principle is felt, and lamented by the Judges, and they go as far as they can in favor of an unpaid vendor. Thus, in Hammond v. Anderson, 4 Bos. & Pull. 70, Sir J. Mansfield, Ch. J. says, “the right of stopping in transitu is a favourable right, which the Cour-ts of Law are always disposed to assist.” In Scott v. Pettit, 3 Bos, & Pull. 469, Lord Alvanlet, who had tried the cause at N. P. says, “¿At the trial I could not help forming the wish, that the question, how far the bankruptsv of Beckley had operated as a countermand of his previous orders to Messrs. Wallers,
Let us now see how these general doctrines apply to our ease. Two merchants in the of Richmond come the one is a seller of flour, the other a buyer. The seller exposes his bill of parcels: here I have one hundred and nineteen barrels of_ line flour, lying in Fishers’ warehouse: these are the particular-brands, and number of each brand: my price is $ 3 50 per barrel, cash. The buyer says, I will take it. The amount is calculated, for which he gives a check on the Bank. The seller at the same 'time gives him a bill of parcels*, an order on the warehouse man, and a receipt in full for the price of the flour. Is not this a complete, and executed contract? The money paid, and the flour delivered. That the check was made, and understood ‘as a cash payment, none will doubt, who recollects that, since the institution of Banks, the merchants have used them as a place of deposit for their funds, and -make all their money payments by checks on them. The receipt in full, too, shows that the seller at least thought that he had gotten his money. It would seem strange, if in return he did not give the flour. An actual, manual delivery of it, was, from the nature of the article, not to be expected ; but fair dealing required t hat something equivalent should be done, and the vendee would hardly have paid his money, without getting what he considered equal to an actual delivery: he_got the order, directing the ware
Phillimore v. Barry, 1 Camp. 513. This was a sale of rum, forming part of the cargo of a Danish prize, which was lodged in the warehouse of Fedor Hfhid, of Dover. The terms of sale were a deposit of 25 per cent, to be paid immediately, and the remainder in thirty days; at the end of that timo, purchasers to take away the goods, or afterwards to pay warehouse rent. Thirteen puncheons of this rum, consisting of several lots, were bid for, and knocked down to an agent of the Defendants, for them. Before the thirty days elajDsed, the warehouse caught fire, and by moans of a quantity of gunpowder lodged in them, were blown into the air. There was no evidence of the deposit being paid. The action was brought by the seller, to recover the price of the rum. The first question was upon their Statute of B’rauds, the 17th section of which requires a memorandum in writing, in certain cases, in the sale of personal chattels, in this, differing from ours. Having discussed that, point, Lord Elbenborougii held, that the property vested absolutely in the purchasers, from the moment of the sale, and there was a verdict for the Plaintiff.
But it was contended, that the ease before us falls within that class of cases, were something still remained to be done by the vendor to complete the contract, and therefore that the properly in the
But, 1 will now cite a case, which (if I mistake not strangely,) will remove the objection, that there was no such separation here, as would enable the vendee to designate any particular barrels as his property; an objection founded on the fact, that there were in the warehouse, and belonging to Pendleton, two barrels of the Rose, and two of the Pedlar brand, which were not sold with the one hundred and nineteen. The case is Jackson v. Anderson, 4 Taunt. 24. Saddler, Jackson & Co. consigned to Fielding, residing at Buenos Ayres, to be sold for them. He sold the and sent them an account of the proceeds, calculated in dollars, and annexed to the following letter. “ Gent: Annexed, I hand you an account of sales of four trunks, nett proceeds, 1,969 Spanish dollars, which amount I shall shipper the Cheerly, gun brig, Lieutenant FuIIarton, who will sail direct for England, in ten or fourteen days,” &c. Sometime afterwards, the Plaintiff received the following letter, brought by the ship Cheerly. 11 Gent: I have by this conveyance, sent to my friends, Messrs. Laycoch fy Co. a bill of lading for a barrel
J.F.
of dollars, marked-100, in which are included for
P.
you, and on your account, $1,969, which sum will he rendered to you by said gentlemen,” &e. On the receipt of this letter, the Plaintiffs applied to Laycoch & Co., and after being put off several times, were at length told, that they bad transferred the bill of lading to a friend. On further enquiry, they found that the barrel of dollars, on its arrival, had been deposited in the Bank of England, and that the bill of lading, endorsed severally by Fielding, Lay-cock 8? Co., and the Defendants, had been transmitted to the Bullion Office by the Defendants, of whom the Bank had purchased the dollars, and paid them the sum of 1,098¿. 13 9, being the value of $4,718, contained in the barrel, which sum the Defendants carried to the credit of Lay cock 8,- Co., with whom they had an account as Bankers. Upon this, the Plaintiffs demanded the $ 1,969 of the Defendants, who refused to deliver them up, and thereupon they brought Trover for them. A Verdict and Judgment at Nisi Prius, were taken for the Plaintiffs for 418/. 18 9, with leave to the Defendants to move to enter a nonsuit. In support of the motion, it was urged by Shepherd and Vaughan, Sergeants, that admitting the barrel, consigned to Lay cock Sc Co., to be the same from which the $ 1,969 were intended to be appropriated to the Plaintiffs, still there has not been any such appropriation of them, as will entitle the Plaintiffs to this form of action. The objection, they said is, that there has not been any act done in respect to the 1,969, claimed by the Plaintiffs to separate them from the rest, so as to enable the Plaintiffs to designate them as their own properij*; and when a demand was made, by the Plaintiffs, of the dollars, if the Defendants had desired them to point out which dollars were their property, they could not possibly have ascertained them, which shows that neither Trover nor Detinue will lie. This was the argument of eminent Counsel, and it will be admitted that it was put in its most imposing form. What said the Court? Its opinion was delivered by Mansfield, Ch. J. After disposing of the other objections, he remarks, “ Another question has arisen from the intermixture of property. It appears that no separation was -ever made from the whole quantity of $1,969, belonging to the.Plaintiff; and an objection has been taken on that ground against the form of the action. But, we think there is no difficulty in that point. The Defendant has disposed of all the dollars: consequently, he has disposed of those which belong to the Plaintiffs; and as all are of the same value, it cannot be a question, what particular dollars loerc Ms. It is not like the case of tenants in common, who have aright to a part of every grain of corn, &e. Here, one has a right to a certain number, and the other to the rest. If a man keeps all, and has no right to a part, the action lies for that part, which he wrongfully detains.” Now I ask, where is the difference with respect to separation between that case and this? If Trover could be maintained for $1,969, out of an undivided mass of $4,718, would not Trover equally lie for one hundred and nineteen barrels of flour out of one hundred and twenty-three? The dollars were not more alike than barrels of tlic same quality and brand. The dollars in the one case were consigned to Lay cock Sc Co., and the bill of lading endorsed, and delivered to them: in the other case, the barrels of flour wero
Hut, surely, the custom puts it beyond A] question. “ An established usage (says Chief Justice Gibbs, in Lucas v. Dorrien, 2 Com. L. Rep. 105,) constitutes the common understanding of parties in their dealings, and on the foot of that common understanding, they are supposed to contract.” See also Doug. 513, what Lord Mansfield says of a custom, even one year old; and see Starkie’s Evid. pt. Ath, 452-3-4-5. The custom found is, that flour in store sold by order, and passes by the transfer of the order, from hand' *"° ^anc^ without actual delivery of the flour to any.” Now, engraft this into the contract of the parties before us, and the question must be decided, unless you say that the parlies could not make such a contract; that such an usage cannot stand. And why should we say so? There is nothing illegal in it. The principal foundation of Mercantile Law is usage: and it has become Law, because the Courts, finding it established in practice, have respected it, and made it the rule of their decisions in mercantile caSes. That this usage is convenient, is proved both by its existence, and the nature of the article. It saves the trouble to the merchant, of going
To show the weight which the Courts give to mercantile usage, I will refer to the subject of dock warrants, treated of in the following cases: Spear v. Travers, 4 Camp. 251; Zwinger v. Samuda, 2 Com. Law Rep 98; Lucas v. Dorrien, 2 Com. Law Rep. 105; and Keyser v. Suse, 5 Com. Law Rep. 461.
But, suppose that in the teeth of the contract, the usage and the cases cited, we say that no flour of Rose and Pedlar brands passed, because there were two barrels of each more than were sold. Still' as regards the flour of the Bent Creek, Fredonian, Rocky Creek, D. S. Garland, and Rockford brands, we must say that passed by thd order, because all in the warehouse, of those brands and quality, were contained in the order: (as in Rugg v. Minet, the Court decided that the property passed to the vendee, in all the casks that were filled up.) And if the property in any of the flour passed to the vendee, the vendor had a right to recover for so much, however small the quantity; and the instruction of the Court which we are discussing, and upon which the whole turns, was not wrong, for, the Court instruct the Jury, that if they believe the evidence, the Plaintiff had a right to recover in this action, not pretending to speak as to the amount of the recovery, but as to the form of the action; as to the law, not as to the facts. '
Upon geueral principles, then, and also the I am of
This was an action of Assumpsit, brought in the Superior Court Court of Law for the County of Henrico, by William G. Pendleton, against Gabriel Ralston and Archibald Pleasants, merchants and partners, trading under the firm of Ralston fy Pleasants, for $416 50, the price of one hundred and nineteen barrels of fine flour sold and delivered Pendleton to Ralston 8? Pleasants. The suit abated as to Ralston, by the return of the Sheriff, and was afterwards Pleasants only. The contract of sale was not denied by Pleasants; but his defence was that it was an executory contract only, and not a sale executed by delivery.
That a delivery of the flour was necessary to make it an executed sale, is not denied. Nor is it pretended that there was an actual delivery. But a constructive delivery is as effectual as an actual delivery: And the question is, whether there has been such delivery in this case.
The contract was for the sale of one hundred' and nineteen barrels of fine flour, of certain specified mill brands, which Pendleton then had stored in the warehouse of J. fy J. Fisher, in the City of Richmond. The price was fixed at $3 50 per barrel, to be paid in hand, amounting in the whole to $416 50. Ralston fy Pleasants, as soon as the contract was entered into, gave to Pendleton their check on the Bank of Virginia, for the amount of the purchase money, and received from him a bill for the flour, and an order on J. 8; J. Fisher, to deliver the flour to them. The order was in the following terms: “Messrs. John fy James Fisher, junr., Gentlemen, Deliver to Messrs. Ralston <§' Pleasants, one hundred and nineteen barrels Richmond fine flour, which are stored with you, of the following brands, viz: Pedlar, 62 barrels; Rose, 2 barrels; Bent Creek, 7 barrels; Fredonian, 10 barrels; Rocky Creek, 20 barrels; David S. Garland, 13 barrels; Rockford, 5 barrels. Yr. mo. Wm. G. Pendleton. Richmond, March 20, 1820.” Pendleton actually had, at the time of the contract, in the warehouse of the Fishers, fine flour with which the order might have been strictly complied with. There was not, at that time, in the said warehouse, any fine flour of the specified brands, other than that, which belonged to Pen
It was insisted, by the Counsel for the Appellant, that there can be no constructive delivery, where any thing remains to be done, as between the vendor and vendee, to put the property into a deliverable condition. And it must be conceded that the cases referred to by him, fully established the principle. I will, however, take a hasty view of them, in order to show that the circumstances of those cases, are materially different from this case.
In Hanson v. Meyer, 6 East. 614, there was a sale of all a man’s starch, at a certain warehouse, at so much per cwt., and it was held that the sale was not complete to pass the property, because the starch remained to be weighed, before even the price could be ascertained.
In Wallace v. Breeds, 13 East. 522, there was a sale of fifty out of ninety tons of Greenland oil, which was in casks. " It was held, that the property did not pass, because, according to the constant custom of the trade, the casks were to be searched by a cooper employed by the vendor; a broker, also, on behalf of both the vendor and vendee, was to attend and make a minute of the foot-dirt and water in each cask; and the casks were then to be filled the seller’s cooper, and at his expense, so that they might be delivered in a complete state, containing the quantity sold.
In Austen v. Craven, 4 Taunt 644, there was a sale of fifty hogsheads of sugar, of a certain quality, at so much per cwt. There were no hogsheads of such sugar in existence at the time of the eon-
In Busk v. Davis, 2 Mau. & Selw. 397, there was a sale of ten tons out of eighteen tons of A’fgaflax, then lying at a certain wharf. The flax was in mats of different weights. It remained to weigh the flax, before it could be in a situation to be delivered; and it would be ■necessary to break some of the mats to make up the precise quantity: sold. I say nothing at present, as to the right of the vendor to select the mats to be delivered. It was held that the sale was not complete, so as to pass the property.
In Shepley v. Davis, 5 Taunt 617; 1 Com. Law Rep. 211, there was a sale of ten tons out of thirty tons of hemp, at a warfinger’s. It remained to weigh the ten tons from the general mass, before they could be delivered. Held, that the sale was not complete, so as to pass the property.
In White v. Wilks, 5 Taunt. 176; 1 Com. Law Rep. 64, there was a sale of twenty tons of oil, out of a merchant’s stock, consisting of several large quantities of oil, in divers cisterns, and in divers places. It remained to measure from the larger masses, the twenty tons sold, before they could be in a situation to be delivered. Here, also, I say nothing at pi'esent, as to what cisterns the twenty tons should be taken from. This sale was held not to be complete, to pass the property.
Thus, in some of these cases, it remained to ascertain even the price of the thing sold; and in all of them, it remained to measure or to weigh the thing sold, before it could be delivered. In the case at Bar, nothing remained to be done for ascertaining the price or amount of purchase money; that was fixed by the terms of the contract itself; and the thing sold required neither to be iveighed nor measured.
But, it is contended, that this case resembles Wallace v. Breeds, and comes within the influence of the general principle as to the thing sold not being in a deliverable situation, because the flour might require some coopering. But, in Wallace, v. Breeds, it was certain at the time of the sale, that the thing sold was not then in a situation to be delivered; it was certain that it required the agency of a cooper to put it into that state; and the cooper was to be selected by the vendor. In this case, no agency of a cooper may have been necessary. It is only sometimes, that flour in store, requires any coopering; and when it does, the eooper is not then to be selected by the vendor; for, the usage of the trade, and consequently the implied contract of the parties,
But it is contended, that the property did not pass by the sale in this case, because the specific flour sold was not ascertained as to identity-and individuality^ by an actual separation of it from the other flour with which it was mixed in the warehouse. This objection cannot, I picsume, be intended to apply to any^ of the flour sold, except to that of the Pedlar and Rose brands. As to all the flour of the other brands, there was no other flour of those kinds in the warehouse, except the precise numbers, mentioned in the order. Consequently, their identity and individuality were as fully ascertained as if they had been actually delivered. The objection, however, docs apply to the flour of the Pedlar and Rose brands, there • being two barrels of each of those brands more than the numbers called for in the order. And the question is, whether that circumstance shall prevent the sale from passing the property in the flour of those brands. It is true, that Chief Justice Mansfield said in Austen v. Craven, and in White v. Wilks, that the actions could not be supported, because the contracts of sale under which the property was claimed, attached to no specific quantity of oil in the one case, or of sugar in the other. And in Busk v. Dav;s, Lord El-LExnonouGi-i, and some of the other Judges, spoke of the necessity of ascertaining the identity and individuality of the property. But it should always bo borne in mind, that the expressions of Judges must be construed in reference to the circumstances of the cases to which they are applied. Austen v. Craven, was the sale of fifty bogheads of sugar, of a particular quality, which were not in existence at the time of the contract; and if they had been in existence, yet as hogsheads of sugar are of no prescribed weight, it would have been necessary to iveigh- them, before the sale would be complete. White v. Wilks, was the sale of a smaller portion of oil, out of di
It is farther contended for the Appellant, that it was- necessary to count the barrels before they could be delivered, and that the sale could not be complete to pass the property, until they were counted. But, I have not found any adjudication which countenances the idea, that the necessity to count the things sold, will produce that effect, in cases where the things sold are individual things, of the same value with each other, and with those with which they are mixed, and where the counting is not necessary for ascertaining the amount of the purchase money. In the case before us, the things sold were individual things, of the same value, so far at least as relates to the-flour of the same brand; and no counting was necessary for ascertaining the amount of the purchase money: that was fixed by the terms of the contract itself. The barrels, it is true, were to be counted. But so they must be in cases where a certain number is sold, at an agreed price, and where there are no wore in the warehouse than the number sold. But, in such cases they are counted, merely to see that they are in the warehouse. And it would not be contended, 1 presume, that the necessity for counting in such cases, would prevent the property from passing. I admit, that if the sale had not specified the number of barrels, but had been of all the flour In the warehouse, or of all the flour of any particular brand, at so much per barrel, such a sale would not pass the property, until the barrels ‘ were counted; because, the counting would be necessary in that case for ascertaining the amount of the purchase money; and no sale can be complete till that is ascertained.
I am of opinion, that the usage- of trade, stated, in the Record, for flour in store to be sold by mere draft or order on the warehouse man, and to pass through many hands before it is called for, is en
Upon the whole, I am opinion, that there was a constructive delivery of the flour, which completed and executed the sale, and passed the right of property to Ralston <§’ Pleasants. The flour therefore being theirs, was at their risk, and the loss of it by the accidental burning of the warehouse, must fall on them, and not on Pendleton. And as the check was given on the Bank of Virginia for the purchase -money, did not avail Pendleton as a payment, (the check itself having been consumed by fire, and the payment of it countermanded by Ralston fy Pleas&nts,) I think Pendleton is entitled to recover the purchase money in this action, and that the Judgment should be affirmed.
In considering this case, I have examined all the cases cited at the Bar, and also some others that were not noticed. It is a settled rule of the Common Law, that property in personal chattels passes only by actual delivery of the thing, except in cases in which some equivalent delivery is agreed upon by the parties, or is established by custom or usage, in which a virtual delivery is substituted for actual delivery of the thing. But, in these cases, unless the thing was in a condition to be delivered without more to be done by the vendor, either as regarded the price, or the quantity, as there could be no actual delivery until that was done by the vendor, so there can be no virtual delivery equivalent to it. And all the cases on the .subject appear to me to have.turned on the enquiry, whether, from,;' the nature of the subject, it was, or was not, in a deliverable condi-,: lion, that is, without more to be done by the vendor affecting the price or the quantity of the thing to be delivered. From some of the cases, it might be inferred, that identity of the thing was a pre-requisite to a virtual delivery of it; and I think there can be no doubt it is so, in every case in which the price or quantity is to be affected by what remains to be done to ascertain it. But, in a case in which 'identity is a matter of total indifference, both to the vendor and vendee, either as regards price or quantity, it is certainly of no importance. It is impossible to suppose, upon the facts stated in the Bill of Exceptions, that if Pendleton, the vendor, had separated the one hundred and nineteen barrels of flour from the one hundred and twenty-three, in pursuance of the terms of the order: that when he
In the case of Busk v. Davis, 2 Mau. & Selw. ten tons of flax were sold, to be taken out of eighteen tons put up in mats; the order for it had been accepted and entered in the wharfinger’s books, but that, Loi’d Ellenbohough said, was not sufficient: further acts were necessary, for the flax was to be weighed, and the portion of the entire bulk to be delivered, was to be ascertained, and it might be necessary to break open some mats to make up the quantity agreed upon. If in that case the flax had been in mats of equal quantity, and value, the by inspection a public officer, and the latter by the facts in the case, as in the case of the flour, it is not to be inferred from the language of Lord Elbenboro'ugh, or any other Judge, that it would have been held that the property did not pass; but the contrary. The case of Jackson,
With regard to the cooperage, which might not be necessary, and
I think, therefore, that the instmciion of the Judge to the Jury .'.Vas correct, and that the Judgment must be affirmed.
Judges Goalteh and Ghees, abseijt.