19 Or. 571 | Or. | 1890
delivered the opinion of the court.
The question presented on the record in this case for our consideration is whether, upon the delivery of the wood on board the cars at the place designated in the contract, the sale became absolute and the title vested in the defendants, or was the sale conditional until the wood was received and measured by the quartermaster at Walla Walla. Upon this question the court below instructed the jury as follows: ‘ ‘Under the contract set out in the pleadings in this case, it was not the business of plaintiffs to procure any shipping receipt or other paper from the railroad company for the purpose of showing the amount of wood which they had
The defendants, on the other hand, claim that the receipt and measurement of the wood by the quartermaster was a prerequisite to the consummation of the sale, and until it was done the title did not pass to them. It may be stated as a general rule that when some act remains to be done in relation to the property which is the subject of the sale, and there is no evidence to show any intention of the parties to make an absolute and complete sale, the performance of such act is prerequisite to a consummation of the contract, and until it is performed the title to the property does not pass to the vendee; as, when there is a sale of goods by number, weight or measure, at so much a piece, a pound, a cord or bushel, it is necessary, in the absence of evidence showing a different intention, that the things should be counted, measured or weighed before the price or consideration to be paid can be ascertained. Before
It is not disputed that when there has been a complete delivery of the property in accordance with the terms of the contract of sale, and nothing remains to be done by either of the parties in relation'to the property to effect the transfer, the title passes, although there remains something to be done in order to ascertain the total value 6f the goods at the value specified in the contract. Burrows v. Whitaker, 71 N. Y. 291; 27 Am. Rep.42; Graff v. Fitch, 58 Ill. 373; 11 Am. Rep. 85. There is also a line of authorities which hold that although a large and unknown quantity of goods may be sold by the foot, pound, or yard, yet if the vendor is not bound to weigh or measure before delivery, but delivers the whole to the buyer, the mere fact that the precise quantity is not then known, and so the whole price ascertained, does not prevent the title from passing. These cases, however, proceed largely upon the ground that the particular contract did not require that the articles should be weighed or counted before the title should pass. It is simply a question of the intention of the parties. Riddle v. Varnum, 20 Pick. 280; Benj. on Sales, 267. But when the goods are to be weighed or measured in order to ascertain the quality, or quantity, unless it appears that the intention of the parties was otherwise, the title will not ordinarily pass until such measuring or weighing is done. It is not important who
Under this contract plaintiffs agreed to furnish the defendants 2,900 cords of good, sound, merchantable fir wood, more or less, at the rate of §1.90 per cord on board the cars at or between Clarnie and Fairview, to be received and measured by the quartermaster at Walla Walla. Here the price is stipulated in the contract for each cord, but quantity, more or less, agreed to be furnished as provided in the contract is to be ascertained by the quartermaster.
Several cases were cited by respondents’ counsel to the effect that where there is a valid contract of sale, a delivery to a common carrier according to the terms of the contract, vests the title to the property in the buyer. These were cases when goods had been purchased to be shipped by a common carrier, and nothing remained to be done by either of the parties in relation to the goods to effect a transfer of the title, and are not applicable to the case under consideration.
It follows, therefore, that the judgment below must be reversed and the case remanded for a new trial.
(1) 11 Am. Rep. 85.