57 Md. 56 | Md. | 1881
delivered the opinion of the Court.
The bill in this -case was filed on the 5th of February, 1880, by Charles L. Cooke against Eugene Mitkiewicz and James A. Cooke, trading as Mitkiewicz, Cooke & Co., Henry J. Kintz, Andrew J. Reeder, and A. E. Smyrk, Sheriff of Baltimore City.
An injunction was granted and issued, and receivers were appointed, immediately on filing the hill.
The defendants answered the hill ;• and in the answer of Reeder he denied the material allegations of the hill so far as they related to himself, and set up claim to the 500 tons of coal, as having been sold and transferred to him by an executed contract of sale.
The receivers, on finding that Reeder had, on the 4th and 5th of February, 1880, hut previous to the service of the injunction, removed a large portion of the 500 tons of coal from the coal yard of the insolvent firm, filed a petition, alleging that such removal was unauthorized and unlawful, and that Reeder had refused, on demand, to
Upon the question thus raised a large amount of testimony was taken by the parties ; but before the testimony was returned, Reeder moved to dissolve the injunction, so far as the same affected him.
Upon return of the evidence, the case was heard upon the motion to dissolve, and also upon the application to require the coal to be delivered to the receivers. The Court refused to dissolve the injunction, and determined and ordered that the coal should be delivered to the receivers, and that Reeder had acquired no right or title thereto; and that an account should be stated of the proceeds of sale, &c. It is from these orders that the appeal has been taken by Reeder.
The case is properly here under section 21, Art. 5, of the Code. The right of appeal is expressly given from an order refusing to dissolve an injunction ; and while no appeal will lie from a simple order requiring property to be delivered to a receiver, yet, from an order determining a question of right between the parties, and directing an account to be stated on the principle of such determination, an appeal will lie. Here the question of right to the coal was fully raised, considered, and definitively decided by the order of the 9th of October, 1880, and an account, directed to be stated. The case is therefore brought fully within the purview of’ 'the statute.
The material facts of the case, involved in the present inquiry, are not numerous or complicated, and they are well summarized by the learned Judge who decided this case below'. The facts as collated by him are, that Mitikiewiez, Cooke & Go. were wholesale dealers in coal, and Reeder dealt in the same article at retail. It was the course of dealing between the parties, that when Reeder sold coal which he desired from Mitkiewicz, Cooke & Go., he sent a delivery order to them to deliver the coal to his carter, and he would make monthly settlements for the amount so obtained. This being their course of dealing, Mitkiewicz, Cooke & Co., on the lililí of January, 1880, proposed to borrow of Reeder $2000, and to give him 500 tons of coal as security therefor. It is proved by Oliver Reeder, who was present at the transaction, that it was understood and agreed verbally, that his brother, A. J. Reeder, was to call for the delivery of the coal as he might require it, and that the price of the same was to he credited on the note to ho given by Mitkiewicz, Cooke & Co. for the §2000. When the transaction came to he executed by the payment of the money to Mitkiewicz, Cooke & Co., nnd the delivery by them of their note to Reeder, accom
The appellees excepted to the parol testimony offered by the appellant Reeder, tending to modify the agreement of the parties as expressed in the proviso to the receipted bill of parcels; and, of course, so far as that téstimony may tend to change or modify the agreement it is inadmissible, and therefore subject to the exception. The written contract of the parties is the best exponent of their intentions with respect to the subject-matter, and
This question has "been the subject of a great many decisions, made upon a variety of facts, and the law must be regarded as perfectly well settled; and the only difficulty that can exist is in the application of established principles to the special facts of each particular case.
Where there is an immediate sale of a specific and ascertained chattel, and nothing remains to be done by the vendor as between liim and the vendee, the property in the thing sold vests in the vendee, and then all the consequences resulting from the vesting of the property follow; — such as the risk of loss, the right to vindicate it against trespass, conversion, &c. The reason of the rule in such case is, that, by the contract itself, the vendor appropriates the specific chattel to the vendee, and the latter thereby agrees to take that specific chattel, and to pay the stipulated price; and that being so, the parties are then in the same situation as they would he upon actual delivery of goods in pursuance of a general contract. The very appropriation of the chattel by the contract is equivalent to delivery hy the vendor, and the assent of the vendee to take the specific chattel and to pay the price agreed on is equivalent to his accepting possession. The effect, therefore, of the contract itself, is to vest the property in the vendee. Dixon vs. Yates, 5 B. & Ad., 313, 340; Thompson vs. Balt. & Ohio R. Co., 28 Md., 404; Wait vs. Baker, 2 Exch., 1. This right of property, however, may be, in certain cases, subject to the
But this interpretation of the contract and the effect thereof will be greatly modified by the fact that something remains to be done by the vendor in order to individualize the subject-matter of the contract, or to separate and distinguish the part sold from the whole of a greater quantity or bulk of the same article, or to ascertain the weight or measure of a particular lot or parcel of any article that may have been the subject of sale, where the weight or measure may be essential in determining the amount of the price to be paid.
In the leading case of Hanson vs. Meyer, 6 East, 614, the defendant sold a parcel of starch, at a certain imice per cwt., and, by order, directed the warehousemen to weigh and deliver to the vendee all his starch. Part thereof was weighed and delivered, and then, the purchaser becoming bankrupt, the vendor countermanded the order for the delivery of the remainder, and took it away. In an action for trover, brought by the assignee of the bankrupt, it was held, that under that contract the absolute' property in the starch did not vest in the vendee before the weighing, which was to precede the delivery, and to ascertain the price; and that part of the starch having been weighed and delivered to the vendee by his direction, the vendor might, notwithstanding such part delivery, upon the bankruptcy of the vendee, retain the remainder, which still continued unweighed in the warehouse .in the name and at the expense of the vendor. In delivering the judgment, Lord Ellenborougi-i, O. J., said: “Till it was weighed, they,, the warehousemen, as his agents, were not authorized to deliver it. Still less were-the buyers themselves or the present plaintiffs, their assignees, authorized to take it by their own act from the Bull Porters’ warehouse. And if they could not so take
If, therefore, only a part of a bulk he sold, as in this case, so that weighing or separation is necessary to determine the identity or individuality of the part so sold, or if the whole of a commodity he sold, hut weighing or measuring he necessary to ascertain or compute the price, because the quantity is unknown, unless the intention to pass the property be manifest, without further act on the part of the vendor, the act of weighing or measuring is deemed essential to vesting the property in the vendee. This is abundantly established by many decided cases, among which we refer to Busk vs. Davis, 2 M. & S., 397; Simmons vs. Swift, 5 B. & Cr., 857 ; Shepley vs. Davis, 5 Taunt., 617; Swanwick vs. Sothern, 9 Ad. & El., 895; Golder vs. Ogden, 15 Penn. St., 528; Scudder vs. Worster, 11 Cush,., 573. In all such cases the concurrence of the seller in the actual weighing or measuring is deemed essential, and as a condition precedent to the vesting of the right of property in the buyer ; and until the separation and appropriation of the part sold, or the weighing or measuring he done, the contract is merely executory. Blackb. on Sales, 152 to 158. There may be, it is true, power delegated to the buyer to separate from a larger •quantity, and 'to weigh or measure the commodity bargained for, in lhe absence of the seller; and upon such separation, weighing or measuring being clone, in pursuance of the authority, the property will vest in the ven
Such being the case, it is very clear, we think, that Reeder had no such vested right of property in any 385-tons of coal in the mass or hulk in the yard of the sellers,, as to entitle him to separate from the bulk and weigh that quantity, and appropriate it to the contract, without the concurrence and direction of the vendors. And it follows that the 385 tons of coal removed by him remained the property of Mitkiewicz, Cooke & Co., and that the-receivers were entitled, and in duty bound, to take charge of it, under the order of Court.
The orders appealed from must, therefore, be affirmed,, with costs, and the case he remanded.
Orders affirmed, wilh costs, . and cause remanded„