56 Pa. 322 | Pa. | 1868
The opinion of the court was delivered, January 7th 1868, by
The question was submitted to the jury on the trial below, and they found that the contract between the plaintiff and defendant was for the sale and delivery of four barge-loads of oil, and not a sale of oil by the barrel. Of course until delivery no specific oil passed to the defendant. Until this took place, he had only a right of action to recover for a breach of contract.
It is unnecessary to say whether the defendant was bound to take, and pay for the number of barrels in each completely laden barge ; if there be a question about that, it is not here — hut whether the contents of partially laden barges in progress of being filled passed as fast as it entered the barge. The court thought not, and so decidedly think we. The defendant could not be.compelled to take a partly filled barge when he had contracted for full ones, any more than if he had contracted for a barrel of oil could he have been compelled to accept one half of quarter full. This would hardly be contended for, yet the principle is the same: Winslow, Lanier & Co. v. Leonard, 12 Harris 14; Story on Sales, §§ 296, 299. Under the finding of the jury there is little room for argument against the ruling complained of. Nor do we see any error in rejecting the offers of testimony. Not one of the assignments of error was according to rule and we might have dismissed them all without notice, but did not, hoping for more accuracy in the future.
Judgment affirmed.
