No. 6598 | Tex. | Jun 3, 1890
—Appellees on the 9th day of May, 1885, signed an order to appellant to forward to them a soda water apparatus. Defendants lived and made the order at Brownwood, Texas. Plaintiff lived and received the order in Massachusetts. The order contained a particular description of the articles to be furnished. It also contained an agreement that upon receipt of a bill of lading payment of the price would be made in specified manner, and that the goods should be shipped by way of “Dublin, on the Houston & Texas Central Railway.”
The evidence shows that the articles had to be manufactured after the order for them was given, and that they were completed and shipped on the 4th day of June, 1885, over the route designated.
Before the goods were shipped appellant received from appellees a telegraphic dispatch sent by them on June 2, 1885, reading: “Too late; don’t send soda fountain.” Plaintiff testified, without being contradicted, that when the telegram was received in Boston the apparatus “ was all put together and set up; the inside parts, which were all finished, were last of all put in and connected, and then the apparatus was tested and packed, which required two days, and covered all that had to be done” after the telegram was received; that he does not keep such goods on hand, and that there are many different styles of apparatus, the possible combinations being over 150,000, so that he can not manufacture beforehand to suit customers’ wishes, which maybe controlled by a number of causes, on account of which one manufactured to comply with a given order and not taken, as in the present instance, is found difficult to value or to be sold, and is worth greatly less than its cost or contract price; that the price agreed to be paid by appellees was $870 in monthly installments of $30 each, with interest at the rate of 6 per cent per annum.
The goods were shipped to Dublin by appellant, and after remaining there for a considerable period were by his order sent to his own attorneys at -Brownwood, in whose hands they still remain.
Appellees refused to receive them, and appellant has, it seems, been unable to sell them for a price that he was willing to take. A judgment in favor of defendants was rendered upon the verdict of a jury. Plaintiff’s suit was for damages for breach of contract.
The charges of the court are complained of in some particulars, but we do not find the assignments of error in that respect well taken.
The third assignment of error reads as follows: “The court erred in overruling plaintiff’s motion for a new trial, both first and second motions, for the reason that the verdict of the jury was not supported by the evidence adduced, but was contrary thereto, it being proved that defendants did make and deliver to Lee, traveling salesman for plaintiff, the order for soda water outfit, as set forth in plaintiff’s petition, on May 9, 1885;
In Benjamin on Sales it is said, speaking of the English rule: “ When the agreement for sale is of a thing not specified, as of an article to be manufactured or of a certain quantity of goods in general without a specific identification of them, or an ‘ appropriation ’ of them to the contract, as it is technically termed, the contract is an executory agreement and the property does not pass.
“ In America there is substantial uniformity in holding that a sale of an article ‘to be manufactured’ is executory, and no title ordinarily passes until the thing is completely done; and it is even held that the title does not vest immediately upon completion, but only after notice to the vendee, or some act of the vendor setting it apart, marking it, or some other similar act. But when the article is completed and the buyer notified thereof the title passes, unless the seller is bound to deliver elsewhere, and therefore he can recover the price.” Benj. on Sales, 279, 283.
The rule upon the subject was stated by this court in the case of Gammage v. Alexander, 14 Texas, 420, in the following language, quoting from Story on Sales: “ Where the contract of sale is executory, and for an article which is not in existence at the time of the sale, but is to be manufactured or made or is to be grown, no property therein passes to the vendee until the thing is not only completely finished and ready but is either actually delivered to him, or at least is set aside and appropriated to him and accepted by him.”
The telegram sent by appellees on the 2d day of June and received by appellant before the goods were ready for delivery was a repudiation of the contract. After it was received appellant had no right to proceed with the performance or to recover the contract price as if the property in the goods had passed to the appellees. His remedy was to sue for damages for breach of contract, and he was entitled to recover the difference between the contract price and the value of the goods in the condition they were in when he received the notice at the place of their manufacture.
The charge of the court that the measure of damages for plaintiff, if he recovered, was the contract price was erroneous. The evidence shows a breach of their contract by appellees without there being anything to excuse it, and the court committed an error in not setting aside the verdict that gave plaintiff nothing, for which the judgment must be reversed and the cause remanded, so as to be proceeded with according to the rule herein announced.
Reversed and remanded.
Delivered June 3, 1890.