145 N.Y.S. 420 | N.Y. App. Div. | 1913
Lead Opinion
The parties to the contract above quoted contemplated that plaintiff in fulfillment of the contract would ship the coal therein mentioned by rail from plaintiff’s mines to Watkins, N. Y. It was to be there loaded on canal boats and thence taken by boat to Syracuse, N. Y., and there delivered alongside defendant’s dock as theretofore, plaintiff having furnished defendant with coal under prior contracts between the parties. The two boats with their loads of coal, which are the subject of this action, reached Syracuse and approached to within 300 or 400 feet of defendant’s dock, which was on the north or tow
It was not unusual for boats to be thus delayed in docking and unloading. That had been true as to other deliveries of coal shipped by plaintiff to the defendant.
If the coal in question had not been in fact delivered to the defendant before it was lost then the carrier still remained the agent of plaintiff for the purpose of making delivery of if under the contract. It is clear that the carrier’s duty in making the delivery had not at that time ended. He still had to place the boats alongside defendant’s dock. This he had" not in fact done, though the boats at one time had approached within a few hundred feet of the dock. It is true that had the dock, at the time, not been completely occupied with other boats, which were then unloading, he would have done so. But defendant was not responsible for this delay in laying the
It is suggested that when plaintiff placed the coal on these boats there was an appropriation of it in fulfillment pro tanto of the executory contract for delivery of coal. While this may have been an actual appropriation by plaintiff to that end, yet it did not complete what it had agreed to do before title passed to the defendant. Delivery of the coal was as much a part of its duty as actual selection and appropriation of it. Delivery of the coal at the place specified in the contract was required to be made, and then only would the defendant’s assent to such Appropriation in part fulfillment of the contract be established. Delivery was not made. Therefore, title had not passed to defendant. (Grant v. United States, 74 U. S. [7 Wall.] 331; Bigler v. Hall, 54 N. Y. 167; McNeal v. Braun, 53 N. J. L. 617; Magruder v. Gage, 33 Md. 344, 348.) The case of Terry v. Wheeler (25 N. Y. 520), which is now urged as authority for a different view as to the effect of a contract requirement of delivery by the seller, does not seem to be in point, as appears
Perhaps it may not be amiss to call attention to the fact that since this action was begun the principle, which seems to me to be decisive of this case, has been embodied in a provision of the statutory law of this State. By rule 5 of section 100 of the Personal Property Law (Consol. Laws, chap. 41 [Laws of 1909, chap. 45], added by Laws of 1911, chap. 571) the effect of a provision in a contract of sale requiring the seller to deliver to the buyer the goods sold is declared to be, presumptively at least, that the property therein does not pass to the latter until the goods have been delivered to him, or reached the place agreed upon.
The judgment should be affirmed, with costs.
All concurred, except Kruse, P. J., who dissented in a memorandum; Merrell, J., not sitting.
Dissenting Opinion
The practical question here is which of the parties shall bear the loss of the two boat loads of coal which were lost owing to a break in the canal occurring while the boats were waiting to be unloaded. The plaintiff, the seller, or the defendant, the buyer ? The solution of that question does not depend upon whether the plaintiff had delivered the coal alongside the dock, within the meaning of the contract. That is a mere circumstance to be taken into account in determining the controlling question as to whether the title to the coal had passed to the defendant before it was lost, or still remained in the plaintiff. If there was an appropriation of the specific coal to the contract, assented to by the defendant after the coal reached Syracuse, as I think should be found as a fact from the evidence, the title passed to the defendant and the loss
It may be, as defendant’s counsel contends, that the record of arrival of boats was kept by the defendant to protect the plaintiff against unfounded claims for demurrage, but the record and surrounding circumstances also establish that the defendant knew that this particular coal had been set apart to it under the terms of the contract and was clearly identified by both the buyer and the seller. Not only did the defendant know the precise time and place of arrival of the coal, but a record of the quantity as well was made by it. The identification of the coal as the subject of the sale was complete.
Although the contract was originally executory, it was as to the coal in question so far executed before it was lost as to pass the title. As regards the passing of the title, it was in effect the same as though the coal had been set apart and identified as the subject of the sale at the time of the making of the contract. The subsequent appropriation of the coal to the contract was sufficient to pass the title to the defendant. (Cooke v. Millard, 65 N. Y. 352, 366; Terry v. Wheeler, 25 id. 520; 24 Am. & Eng. Ency. of Law [2d ed.], 1054, 1058, and cases there cited.) Although the coal may not have been delivered alongside the dock within the meaning of the contract, that was made impossible by a cause for which the plaintiff wáis not responsible, and if the title thereto had passed before the break in the canal, as I think it had, the loss of the coal should fall upon the defendant.
If I am right it follows that the judgment should be reversed.
Judgment affirmed, with costs.