91 N.W. 42 | N.D. | 1903
This is an action in claim and delivery, brought to secure the possession of certain drug-store fixtures, consisting of wall cases, prescription counter, and show cases.
The trial in the court below resulted in a verdict for the plaintiff.
“Minneapolis, Minn., Nov. 2, 1*897. J- J- Reilly, Milton, N. D. —Dear Sir: We will make and deliver on board car» in the city of Minneapolis, in good order, the following store fixtures, according to plans and specifications furnished by us and approved by you, .all exposed work to be made of oak finished in the best possible manner, for the sum of $290 cash when work is delivered. Yours truly, J. C. Witte Mfg. Co.
“Signed and accepted by J. J. Reilly.”
This letter and the acceptance in writing of its terms by Reilly ■constitute the contract under which the fixtures therein described were agreed to be sold and delivered. Show cases were also agreed to be sold under an offer from plaintiff, duly accepted by defendant, hut the -details of that contract will not be mentioned, as the case will be disposed of on the ground that evidence was received on the trial erroneously which was prejudicial and must result in the granting of a new trial. The plaintiff immediately commenced the manufacture of the fixtures upon receipt of the accepted order, which was about November 6th. On December 6th the plaintiff delivered these goods to the Great Northern Railway Company at Minneapolis, consigned to the defendant^ at Milton. The plaintiff took a bill of lading from the railway company, in which Reilly was named as consignee, and immediately sent it to him at Milton. He also wrote him a letter on the same day, explaining the delay in
On the trial it was contended by the defendants that the delivery of the goods was unconditional, and passed the title and possession thereof to the defendant Reilly completely and without any reservation. On the part of the plaintiff it was contended that such delivery was made pursuant to the terms of the agreement for a sale, and therefore conditional, and that the title did not pass until payment was-made. Whether the title passed, by the delivery to the carrier, to the defendant Reilly, became a material issue on the trial. The contract under which these goods were manufactured and delivered provided that the goods were to be paid for in “cash when the work was delivered.” The contract did not ripen into a completed sale until there had been a delivery and a payment, unless there was a waiver of the terms of the contract. Under such contract, delivery and payment w-ere to be concurrent acts. The plaintiff was therein obligated to deliver the property, and the defendant was obligated thereupon to pay for it. Either or both of these conditions of the
Before the title passes to the purchaser in cases of sales for cash, where delivery and payment are to be concurrent acts under the contract, the intent with which the delivery was made becomes a material question. The condition would not of necessity be waived if nothing is said when the delivery is made as to the intent in making such delivery. If the intention that the delivery is conditional can be inferred from the conduct and acts of the party delivering, then the title will not pass. It is optional with the seller whether he will waive the condition by an unequivocal and unrestricted delivery or not. If he delivers the property unconditionally, such delivery, considered alone, is presumptive evidence of a waiver of the condition that title shall not pass until payment is made. Fishback v. Van Dusen, 33 Minn. 117, 22 N. W. Rep. 244; Scharff v. Meyer, 133 Mo. 428, 34 S. W. Rep. 858, 54 Am. St. Rep. 672; Mechem, Sales, § 549; Haskins v. Warren, 115 Mass. 514; Hammett v. Linneman, 48 N. Y. 399; Benj. Sales, p. 282. This presumption is subject to be overcome by the acts or declarations of the seller or the circumstances surrounding the delivery, although not immediately connected therewith or occurring at the immediate time of the delivery. Hammett v. Linneman, supra. The purposes of such delivery as shown by facts may be given as bearing on the intent with which it is made. Rosenbaum v. Hayes, 5 N. D. 476, 67 N. W. Rep. 951.
An unconditional delivery to a carrier for shipment to the purchaser is a delivery to the purchaser. Mechem, Sales, § 739.
The delivery to the carrier in this case was apparently unconditional, but such delivery was not conclusive evidence that the condition that the price was to be paid on delivery was waived. The plaintiff had a right to rebut the prima facie effect of such unconditional' delivery by showing any facts or circumstances existing at
The question objected to by the defendants related to the undisclosed and secret intention of'the plaintiff at the time of the delivery. It called for no fact existing outside of the plaintiff’s mind. It called for a bald conclusion as to the plaintiff’s intent, unsupported by anything occurring at the time of the delivery as a fact, to show an intention by the delivery contrary to what the act itself imported. To permit a contradiction of the legal effect of such delivery by his secret and undisclosed intention would, in our opinion, be going too far even under the wide latitude allowed to show the intention of parties in the performance of particular acts. That would be permitting the plaintiff to change the relations between himself and the defendant, as created by his acts, by stating his own unspoken intention. What his intention was, was a question of fact.to be found by the jury from facts shown in evidence, irrespective of his own unexpressed intent. “Hence the important question, in determining whether there has been a waiver of a condition of sale, is, has the vendor manifested, by his language or conduct, an intention or willingness to waive the condition, and make the delivery unconditional and the sale absolute without having received payment or the performance of the condition of sale? This must depend on the intent of the parties at the time, to be ascertained from their conduct and language, not from the mere fact of delivery alone. It may be proved by various species of evidence: by declaration, by acts, or by forbearance to acts.” Fishback v. Van Dusen, supra. See, also, Mechem, Sales, § 551; Railroad Co. v. Kinchen (Ga.) 29 S. E. Rep. 816; Sutter v. Rose (Ill.) 48 N. E. Rep. 411; Germain v. Lumber Co., (Mich.) 74 N. W. Rep. 644; Zimmerman v. Brannon, (Iowa) 72 N. W. Rep. 439. “In a sale of specific chattels an unconditional delivery to a buyer or his agent, or to a common carrier consigned to him, whether a bill of lading is taken or not, is sufficient to pass the title if there is nothing to control the effect of it. If the bill of lading or written evidence of the delivery to a carrier be taken in the name of the consignee or be transferred to him by indorsement, the strongest test is afforded of the intention to transfer the property to the vendee. * * * If the vendor intends to retain the right to dispose of the goods while they are in course of transportation, he must manifest that intention .at the time of their delivery to the carrier. It is not the secret purpose, but the intention as disclosed by the vendor’s acts and declarations at the time, which governs.” Wigton v. Bowley, 130 Mass. 252. “Consigning the goods without restrictions to the purchaser, or assigning and transmitting to him a bill of lading, are strong evidences of an intention to pass the title, and cannot be controlled by secret determinations to the contrary.” Mechem, Sales, § 740. “A mere mental act on the part of the seller will not suffice if it be not accompanied by some outward act in
The order refusing a new trial is reversed, a new trial granted, and the cause remanded for further proceedings.