79 W. Va. 138 | W. Va. | 1916
In detinue brought to recover possession of a soda fountain and appurtenances sold by the plaintiff, R. H. Thomas Company, a corporation, to M. Mathews, trading ass M. Mathews & Company, under a contract in writing dated February 8, 1913, reserving title. to the property until paid for as therein recited, judgment for plaintiff for the possession thereof if to be had or in lieu thereof the value ascertained by the jury was recovered; and defendants assign error.
The price of the article sold, as stated in the agreement, was $1195, of which $50 was paid cash, and, except $189 which was to be paid upon “receipt of the bill of lading or tender of the goods” and except the last payment of $44, the residue was to be paid in monthly installments of $24 each, for which notes were executed. The agreement contains this paragraph: “It is agreed that the apparatus and appurtenances in this order shall remain the absolute property of the R. H. Thomas Company until paid for; and it is further agreed that I (the purchaser) am to keep the property insured until the termination of this contract, loss if any payable to the R. H. Thomas Company as its interest may appear.” The purchaser was a married woman conducting a confectionery in a room leased of J. F. Butts in Charleston, in which the component parts of the fountain were delivered about April 15, 1913. They were assembled and constructed, as virtually required by the contract, by agents of the seller, and installed in the tenement ready for the ufe intended, about April 24, 1913, the exact date not being definitely ascertained. On that day the contract was duly admitted to record in the Kanawha county clerk’s office.
Out of these facts have arisen various adverse contentions as to the rights and equities of the parties interested. It is argued, first, that, as distress for rent “may be levied on any goods of the lessee i:= found on the premises” (§11, ch. 93, Code), the soda fountain, being found thereon, was chargeable by the landlord, unless “when carried on the premises” it was subject to a lien valid against the creditors of the delinquent tenant. If it be conceded that before installation of the fountain its separate parts were subject to distraint for rent then due, the fountain was and remained liable to levy for any rent thereafter accruing» while the fountain remained on the leased premises or within thirty days after its removal therefrom. Otherwise stated: if before the installation of the fountain and recordafion of the instrument reserving the title the individual factors were liable to dis-traint for any arrearages of rent then due, the fountain when assembled and installed' remained thereafter liable for any subsequent arrearages while it remained on the leased premises and within thirty days after its removal therefrom, but not to exceed in amount one year’s rental. Such is the plain intendment of the statute, as manifestly shown by its explicit terms. There is no escape from this conclusion, unless subsequent provisions of the same section furnish the avenue thereof. For “if the goods of. such lessee ® * when carried
There is no merit in the contention that the landlord can acquire a lien upon the property of the tenant while on the leased premises only by the'procurement and levy of a distress warrant. The statute, as construed in Anderson v. Henry, 45 W. Va. 319, and Huffard v. Akers, 52 W. Va. 21, itself gives the lien, which attaches immediately when the property of the tenant reaches the premises, and continues while it remains thereon and for a period of thirty days after its removal therefrom.
Did the fountain become liable under the statute until its installation in the property occupied by the tenant? Mrs. Mathews evidently did not purchase the constituent factors of a soda fountain; she bought an assembled and installed soda fountain. For the several parts she apparently had no use whatever, and probably could not have assembled them into a completed condition, and did not undertake that task, performance of which doubtless required skill and experience. On the contrary she required, and it was clearly a part of the contract of sale, that plaintiff should install the fountain in place in the property occupied by her; and not until it had effected, that object, as it actually did effect it, can it reasonably be said the fountain as such, the thing she bought and for which she bound herself to pay, was subject to levy for rent then or thereafter chargeable to the' tenant, whereby
That no delivery of the fountain by the seller to the purchaser was intended or effected until it was installed for actual service seems indisputable, as well as the fact claimed by the plaintiff and not controverted that such installation and delivery did not occur prior to the date of the recordation of the reservation of title. Indeed, it appears highly probable the work necessary to effect the installation was not completed until April 26, two days after the contract of purchase was admitted to record. The uncontradicted testimony tends to show with reasonable certainty that' the fountain was not equipped for use until after the 24th of that month.. B. Mathews, husband of the purchaser, said the ornamental tile wainscoting of the side walls of the room occupied by her, then in course of construction at the instance and expense of the tenant, was not finished until April 26 and that on that date the fountain had not been installed. Merrifield, a painter employed by Mrs. Mathews, confirmed this statement, as did also Beleal, and no one contradicted them.
While the contract of purchase, for such it is although in the form of an order, does not definitely require installation by the seller, it indicates that purpose beyond doubt. The parties thereto so intended it, and apparently necessarily so. It was agreed that' in performing that work the seller was excused from doing or bearing the expense of any electrical or plumbing labor in connection with the installation, implying that before actual delivery was intended the fountain was to be constructed, adjusted and equipped ready for the immediate use of the purchaser in the room occupied by her in the conduct of the business in which she was then engaged.
The general and well recognized rule in such cases is that the title, although not expressly reserved and a fortiori when expressly reserved, remains in the seller until the article is delivered complete, unless from the contract it is apparent the parties intended to pass title to so much of the chattel as-was compensated for by payments made periodically in the course of the construction thereof. If the chattel sold is not in existence when the contract is made, as manifestly in this
Where by the agreement the vendor is to do anything to the goods for the purpose of putting them into that state in which the purchaser is bound to accept them — or, as it is sometimes worded — into a deliverable state, the performance of these things, in the absence of circumstances indicating a contrary intention is to be taken as a condition precedent to the vesting of the property. 1 Mechem on Sales §504; Morgan v. King, 28 W. Va. 1; Hood v. Bloch, 29 W. Va. 251. See also Young v. Edwards, 64 W. Va. 68; Moore v. Patchin, 71 W. Va. 192. If the contract be entire, the purchaser’s acceptance of the article can not be enforced in an incomplete condition, where there is no waiver by him. The Elgee Cotton Cases, 89 U. S. 180. And, although under such, contract part of the goods has been completed for delivery and delivered, no title passes to that part unless acceptance thereof .and waiver of delivery as to the residue by the vendee appear from the proof. Kern v. Tupper, 52 N. Y. 550. Title vests only when “nothing further remains to be done to put the goods into that state, place or condition in which the purchaser is bound to accept them”. Bond v. Greenwald, 4 Heisk. (Tenn.) 453; Groff v. Belcher, 62 Mo. 400. To require the vendee to perform a contract of sale because he received part of the goods sold, it must appear, from his admission or the facts and circumstances when the contract is entered into, that he accepted and received such part as a partial fulfillment of the contract. Williston on Sales §94. The legal presumption is that “the buyer does not intend to become owner
While any act required by a contract of sale of a trade fixture, to be manufactured and delivered, remains to be done to put it in a state of readiness for delivery and use, title does not vest in the buyer, but remains at the risk of the seller. Trigg Co. v. Bucyrus Co., 104 Va. 79; Machine Co. v. Gay, 108 Va. 649. The facts of the case last cited aré these: A manufacturer sold a purchaser one of its traction engines, which was shipped “knocked down”, consigned to the manufacturer at the point of destination. Of the arrival of the engine in that condition the purchaser was notified and requested to attend the rehabilitation of the parts, but was not present. They were constructed by the manufacturer’s agents, who to test the engine generated steam therein by the use of wood instead of coal, without a spark arrester, and in driving it by the house of Gay caused its destruction by fire kindled from sparks emitted from the engine, and Gay sued the manufacturer for loss of the house. The. court said, in effect, that, although the contract designated no place of delivery, the mere notice to the purchaf'” of the arrival of the engine at the station, coupled with quest to witness its construction, did not constitute a den very so as to make him liable as purchaser, in the absence of any assumed control of the engine by him. And in the opinion the court further said: “The order constituting the contract of purchase, taken as a whole, precludes the idea that the arrival of the engine was to be regarded as its delivery to the purchaser. The vendee was under no obligation to receive the engine until it was constructed and in good working order. The inference is irresistible that after Floyd and his assistant had put the engine together it was run by them up and down the hill mentioned, for the purpose of testing it and determining whether it was in proper condition to be delivered to the company.” So where a dealer engages to furnish an engine
The doctrine of the decisions cited, when applied to the facts of this case, supports the view that the mere placing of the parts of the fountain upon the leased premises was not a delivery of it within the'contemplation of the contract an’d statute, so as to complete the sale and render the property liable to distraint for rent except as provided in the first clause of §11, ch. 93, Code. Besides, this interpretation, sustained by ample authority, secures to the lessor payment of the rent due, harms no one concerned, and results in manifest justice, since, as we have seen, the sale to Sahley was intended to be and indeed was for an amount sufficient to cover all lien liabilities against the tenant so far as ascertainable from the record before us. It is not contended, and if it was the contention has no merit, that, although not delivered until set up in the leased premises, the fountain was not chargeable with payment of the liabilities so satisfied, though perhaps not in the order of the payments as made, excepting the account of the Kanawha Drug Company (because no lien therefor was acquired by it). • For, as the reservation was recorded before the judgment paid was rendered, the claim first in priority was the arrearage of rent, and the second the balance due plaintiff. The failure to apply the proceeds of the final sale in the order specified doubtless is immaterial if the plaintiff receives the balance remaining due it on the original contract. These conclusions relieve from the necessity of discussing the propriety of the instructions given and refused; for they were proper or improper to the extent they did or did not contravene the principles governing the transfer of title.
The jury rendered a verdict for plaintiff embodied in this language: “We the jury find for the .plaintiff the sum of
Can the verdict stand as the basis of the judgment actually entered? In Avery v. Avery, 12 Tex. 42, an action of de-tinue to recover possession of a slave named John, the form of the verdict was: “We the jury find for the plaintiff with $80 damages and costs of suit”. On the verdict the judgment was that the plaintiff have and recover the negro boy John deséribed in her petition, and that the sheriff having the slave in custody deliver the possession to plaintiff. In the opinion it is said: “The verdict is not'as perfect in form as it should have been; but it has been uniformly decided by this court that if by reference to the record any uncertainty in the verdict can be explained it will be sufficient to sustain the appropriate judgment”.
The language of the verdict, “We find for the plaintiff”, is substantially a finding of the matter in controversy. While in this state no statute prescribes any definite form of verdict in a detinue action, and expressly requires judgment for the plaintiff in the form prescribed by section 6 of chapter 102 where the finding is in his favor, the usual requirement is that the verdict .shall state the property sued for, and, where there are several items, affix to each of them the value ascertained by the jury. If, however, for any reason, the value is not found or returned, the court before accepting the ver-
Thongh in Timber Co. v. Ferrell, 67 W. Va. 14, the verdict sustained as sufficient found for the plaintiff the timber “in the declaration described”, and separately affixed the value of each stack or rick, arguendo the opinion says: ‘ ‘ The purpose of description in the pleading required to be given of property in an action of detinue is to put the defendant on notice of what he is expected to defend and also for the purpose of constituting a recovery in the action, if a recovery can be had, a bar to a second action for the same property. # * The verdict, read in the light of the description given in the declaration, is also sufficiently descriptive of the property”. The verdict in the case cited does speak by reference to the declaration. Here there is lacking any attempt to associate the pleading and verdict. If to formal requirements we must rigidly adhere, although we can see no harm to any litigant can result by a slight departure from antiquated procedure, a reversal must follow. That course, if pursued, necessarily would mulct in costs and damages. a plaintiff who vainly endeavored to effectuate a cure of the alleged infirmity. Such procedure works injustice rather than to promote substantial justice without harm or injury to the adversary party. The summons and declaration, with exactness and precision, point out the property the right to the possession of which or the recovery of its value is the subject matter of the suit. Defendants knew what they were required to defend. Read in the light afforded by the declaration, the judgment furnishes ample protection against further litigation as regards the same property. How then, can they be said to be injured?
It is apparent no verdict other than one for plaintiff could be rendered. Defendants failed to prove facts sufficient to warrant a finding for them. Indeed, it is evident the proof in its entirety showed plaintiff was entitled to the possession of the property sued for, if it can be had, or its value if it can not be had. Scarcely is there a fact disputed upon the trial.
Our order will affirm the judgment.
Affirmed.
