116 N.Y. 371 | NY | 1889
The appellant contends that the title to the coffee in controversy did not pass to J.K. Huston Co., and that, therefore, the transfer to Waterbury Force did not vest in them the title or the possession. The sale is admitted. But as the coffee had to be weighed in order to ascertain the amount to be paid to plaintiffs, it is insisted that the *374
title remained in the plaintiffs. In aid of this contention is invoked the rule that where something remains to be done by the seller to ascertain the identity, quantity or quality of the article sold, or to put it in the condition which the contract requires, the title remains in the vendor until the condition be complied with. The appellant cites a number of authorities which he urges so apply this rule as to make it applicable to the case here presented. It is said in Groat et al. v. Gile (
Now, applying that rule to the facts in this case, nothing remained to be done in order to identify the goods sold, because while out of a larger lot two hundred and thirty-eight bags of coffee were disposed of, nevertheless, as appears from the complaint and the testimony adduced, the bags were so marked that there was no difficulty about identifying the particular bags sold. There remained, therefore, nothing to be done except to weigh the coffee for the purpose of ascertaining the purchase-price. For whether the two hundred and thirty-eight bags of coffee should prove to weigh more or less than the parties anticipated was not of any consequence. *375 Whatever should prove to be for that number of pounds, J.K. Huston Co. had agreed to pay.
This case, therefore, does not come within the rule contended for by the appellant, but instead is governed by the principle enunciated in Groat v. Gile.
Having reached the conclusion that the title and the possession passed to J.K. Huston Co., it becomes unnecessary to consider any of the other questions discussed, for the plaintiff is without title upon which to found the right to maintain an action.
The judgment appealed from should be affirmed.
All concur.
Judgment affirmed.