94 Ky. 490 | Ky. Ct. App. | 1893
DELIVERED THE OPINION ON THE COURT.
Brannin, Brand & G-lover, tobacco warehousemen and factors in the city of Louisville, brought this action to recover of H. P. Thompson the price of sixty-eight hogsheads of tobacco, containing six thousand one hundred and seventy-five pounds, their individual property, alleged to have been purchased by him June 22, 1887, at eleven cents per pound, on a credit of four months, interest being added; also amount of buyer’s fees at two dollars per hogshead, less salvage of four dollars per hogshead, the warehouse in which the tobacco was stored and its contents having been, June 24, destroyed by fire; and the appeal is from judgment against him for seven thousand three hundred and sixty three dollars and twenty-five cents, amount claimed, and interest from June 23, 1887.
It is stated in the petition substantially, that when said sale was made, exact amount of the purchase price had to be ascertained by procuring weights of the sixty-eight hogsheads, which plaintiffs did do on that day in this manner: Several months prior to said sale all the tobacco had been sampled and regularly inspected, and the weights ascertained and separately
That thereafter, on the same day, a number of other hogsheads of the lot of sixty-eight were again weighed for the purpose of seeing whether there had been any shrinking or increase of the original weights; and finding the weights of all the hogsheads so weighed on that day corresponded substantially with former weights, and being, by custom of the trade, guarantors of correctness of said weights,- they did not actually weigh all the remaining hogsheads, nor were they required to do so by the contract with defendant nor by the custom of the trade; but they thereafter took the former weights, and therefrom made out the purchase price, together with memorandum and invoice notes of each hogshead, and charged amount of purchase price so ascertained to defendant upon their books, and placed all said tobacco in control and subject to the order of defendant; all which was done according to custom of the trade and in compliance with their contract with defendant.
The defendant, denying in his answer plaintiffs sold to him said tobacco, or that he agreed to pay them therefor, states that the samples thereof, except those of five hogsheads missing, were, by plaintiffs, on June 22, exhibited, and the tobacco priced to him at eleven cents per pound, net weight, all of which was to be re-weighed; that they proposed to wait four months for payment, taking his note for purchase price, and
He further states that, by law and custom of the tobacco trade in Louisville, it was the duty of plaintiffs to insure and keep insured tobacco in their warehouse for its full value, and the same was, on June 22, covered by policies of insurance for its value, or should have been. That after the warehouse and contents were destroyed, plaintiffs collected, or with reasonable dilligence could have collected, the full value of said tobacco under policies of insurance thereon held by them. And he prayed that in case of judgment in favor of plaintiffs for amount claimed, he recover judgment over against them on account of said insurance for amount of full value of the tobacco on the day it was destroyed; his answer being for that purpose made a counter-claim.
The general rule, that as soon as a bargain of sale of personal property is struck, the contract becomes absolute, even without actual payment or delivery, and the property and risk of accidents vests in the buyer,
But whether a sale vests the right of property m the vendee presently, or not until the thing has been done by the vendor for ascertaining the weight, extent or price of such property, must of course depend upon intention of the parties, manifested by the character of the contract or circumstances under which it was made, and the question may be sometimes determined by the custom of the trade in respect to a particular commodity.
The defendant in this case substantially admits he agreed to take the tobacco upon the terms and at the price proposed by plaintiffs, with a reservation of the right to inspect the five missing samples, and proviso that the tobacco was to be weighed and invoice of the net weights delivered to him.
The plaintiffs, in their reply, deny there was such reservation in respect to the samples or agreement to re-weigli the tobacco, and both issues of fact were properly presented to the jury by instructions of the court, and found against the defendant. Moreover, the evidence shows that defendant had previously seen the lot of tobacco, and was well acquainted with all of it. And strong evidence he purchased the tobacco-'without such reservation is afforded by the fact of ten of the hogsheads prepared for auction sale that day being, at defendant’s request, taken off the brakes and put back with residue of the lot of sixty-eight. And though the tobacco in question was individual property of . plaintiffs and sold privately, it is manifest from the pleadings of both parties, the contract was made with reference to, and, as we
It appears from the evidence that on. the . day of sale the net weight of each of the sixty-eight hogsheads and of all of them was ascertained, and entries thereof on the books of plaintiffs made, as well as invoices prepared ready for defendant, which latter, being in the nature of warehouse receipts, would have entitled him to delivery of the tobacco upon presentation of them. There, however, seems some discrepancy between the version of the parties respectively as to whether a note was to be executed by defendant for the tobacco as he contends, or whether, as stated by plaintiffs, there was an absence of any agreement in that particular, though they agree the tobacco was sold on a credit of four months. It does not, however, make any difference which version be true as regards the question of title to the tobacco; for plaintiffs would have had a right to protect themselves in case of non-payment of the purchase price.
It seems to us clear that the parties intended the-transaction to be an absolute sale of the tobacco, and defendant was thereby vested with title to the property. But even if the title was, according to fair-construction of the contract, not to vest until the quantity of tobacco and certain amount of purchase price were ascertained, it was so vested when those things were done by plaintiffs in the manner mentioned. It was error in the court to permit witnesses to give their opinion as to the legal effect of what occurred between the parties, as it was to instruct the jury to find whether plaintiffs had done all that it was material for them to do by the terms of the-contract.
Although we think the evidence in this case shows-a sale of the tobacco was made and title was thereby vested in the defendant, and he was entitled to his pro rata share of the money collected on open policies-of insurance which plaintiffs had obtained prior to-their sale to defendant, and were in force at the time-the warehouse was destroyed by fire, the amount of
Wherefore, the judgment is reversed, and cause remanded for a new trial consistent with this opinion.