Dibblee v. Corbett

9 Abb. Pr. 200

Opinion

By the Court.

*—Hoffman, J.

The contract between the parties clearly imported that the defendants should be prepared promptly to take the rosin from the hands of the plaintiffs, upon their being apprised of the arrival of the schooner, and upon the plaintiffs following their directions, as to the place of delivery, and using proper diligence in facilitating the discharge and reception of the goods.

Under the charge of the judge, the jury have in effect found that the plaintiffs were faultless, and the defendants negligent.

It is perfectly settled that it is the duty of the" vendee to take the goods within a reasonable time, or he will be liable to the -vendor for warehouse rent, and other expenses growing out of the custody of them, or even to an action for not removing them in case the seller is prejudiced by his delay. (tory on Sales, 404.)

It is insisted by the learned counsel of the defendants, that this rule is only applicable when a sale is so perfected, as that the property has passed to the vendee, and possession remains in the vendor.

If it were necessary in order to support the plaintiffs’ claim and the verdict, that such a transfer of property should be made out, our impressions would be, that the right of property did actually pass upon the arrival of the schooner, so that in England, under an act of bankruptcy the goods would pass to assignees, they paying the price; and so that the defendants could sustain trover for them against others. The weighing of the rosin under this contract may have been as much intended to be done by the purchasers, as by the sellers. (See Ross on Vendors, 32; Law Library, vol. xii., 17, and cases cited; Ward a. Shaw, 7 Wend., 404.)

But whether this is so in all respects or not, when the defendants completed the purchase, took the rosin, and paid the price, they may be treated as purchasers and owners from the date of the contract, which they acted under and fulfilled. When they began to unload, and take the rosin about the 11th day of August, the title then at least became vested in them as owners, &c., from the time of the contract. They could have recovered any advance of price beyond the amount to be given as fixed on that day. They claimed to be owners, and got the property by virtue of this contract; and then by relation for the purposes of this question at least they must be treated as owners from its date.

ifow, if a buyer’s neglect of this character does not entitle the seller to put an end to the contract (3 Oa/rnp. B., 42Y), he has no redress for the injury done him, and expenses incurred by him through the purchaser’s fault, but by an action of this nature, and to hold that the subsequent performance of the bargain which he could not prevent, shall rob him of this redress, would be a conclusion as manifestly unjust as we think it is untenable.

There is nothing before us on which we can pass upon the question of an excess of damages.

The observations above made dispose of the motion to dismiss the complaint, which were made before the plaintiff had given evidence, and were reviewed upon his resting.

The copy of the plaintiffs’ letters to the defendants upon the subject of the vessel’s arrival, and urging a prompt discharge, were given in evidence after an admission of a notice to produce the originals. The admission was excepted to. On what ground we are at a loss to understand, JSTo point as to this admission is now made. To have set these letters out in the complaint would have been pleading matters of evidence.

The same remarks apply to the admission of the conversation of the witness with the defendants, upon the same subject of the discharge of the rosin.

The exceptions as to the inquiry what would be a reasonable time for discharging the rosin, are clearly untenable. Those as to the expense of keeping the rosin and schooner, are equally so.

The judgment must be affirmed, with costs.

Present, Hoffman, Woodruff, and Pierrepont, JJ.