Jones v. Davis

8 Del. 68

• Court: Superior Court of Delaware
• Decided: July 5, 1864
• Status: Published

Opinion

The Court, Gilpin C. J., charged the jury.

There was no question or dispute about the fact that a bargain or contract was entered into between the parties for the purchase by the plaintiff from the defendant of the five bags of dried peaches which the latter had at that time in charge of Oapt. Wilson on board of the vessel commanded by him at Milton, and which-he had directions from the defendant to deliver to his agent, Mr. Christian, in Philadelphia, but which order the defendant countermanded soon after the contract was entered into and directed him to deliver them to the agent of the plaintiff in that city. The evidence of the contract was before them in writing, in the brief letter of the defendant to the plaintiff of the 16th of December, 1863, and in the plaintiff’s reply to it of the 18th of that month, and the written order of the defendant the next day to Capt. Wilson to deliver the bags of peaches belonging to him to the agent of the plaintiff, with a receipt to the plaintiff of the price paid by him for them, amounting to $42.35 for 385 pounds of dried peaches at 11 cts. per pound. The plaintiff had acceded to his offer to sell them at that price, and the defendant in his turn accepted his offer and the terms on which it was made, and receive d the money and gave the order on the captain to deliver them to the agent of the plaintiff in Philadelphia, as he was requested and required to do in the letter of the plaintiff to him. But upon this state of facts the question has arisen to which of them did the fruit belong at the time when the vessel was sunk on her way to Philadelphia with it, and it was entirely lost in the month of February following. And the solution of that question depends on the fact whether it was, or was not, delivered to the plaintiff when the order of the defendant before mentioned was received by Capt. Wilson, on whose vessel if then was, and on which it had been previously shipped by the defendant under his charge for Philadelphia, and which order, he has testified, was received by him from the defendant, after the vessel which had sailed from Milton on the 20th of December, was detained by the ice near the mouth of the creek, some time during Christmas week on his visiting Milton whilst the vessel lay below in the ice. On behalf of the plaintiff it had been contended that although he had bargained for and had paid for the fruit at the price offered by the defendant, the contract for the purchase of it by him and the sale of it by the defendant, had not been perfected and completed by the delivery of it to him at that time, and that according to the contract of sale proved in the case, the sale could not be completed so as to transfer the property in it or the ownership of it from the defendant to the plaintiff and vest it in the latter, until it had been delivered to the agent of the plaintiff in that city, and that until it was so delivered, it remained and continued to be the property of the defendant; whilst just the reverse of this is contended for on the part of the defendant, that is to say, that as soon as the defendant’s order to Capt. Wilson to deliver it to the agent of the plaintiff there was received and accepted by him, the contract of sale was completed and perfected on his part, and that there was nothing fur ther remaining for him to do in regard to it under the contract, and that it consequently thereby became from that moment, the absolute property of the plaintiff in the possession of Oapt. Wilson who then became his bailee, instead of the defendant’s, to deliver it to his agent in Philadelphia. And the decision of this question depends on the terms and the meaning of the contract itself, and whether in doing that, the defendant did all he contracted or agreed to do in regard to it,according to the true meaning of the terms employed in it, for if he had failed in any essential particular to do that which he was bound to do by the terms of his agreement in respect to the matter, the contract had not been completed and perfected on his part, and that defence could not avail him, and their verdict should be for the plaintiff. But if on the contrary, in doing that, he did all that he was bound by the terms of the contract to do in regard to the matter, then their verdict should be for the defendant. It was therefore a question of fact for the jury to decide from all the evidence and the written terms of the contract of sale which they had before them. But as the court had been requested to instruct them in relation to certain principles of law stated by the counsel in their argument of the case, it would suffice to say that no sale of goods is complete, or can transfer the ownership and property in them from the vendor to the purchaser of them without a delivery of them, but there are two kinds of delivery of goods sold known to the law, which it will also suffice to notice in this connection, the one actual and the other constructive. An actual delivery is when the goods are in the actual possession of the vendor and are put either at the time of the sale, or afterward, into the actual possession of the purchaser as his property by virtue of it; but what is termed a constructive delivery of goods sold as known to the law, may occur when the vendor puts them in the possession of an agent or bailee of the purchaser to be delivered to him, or to be held by him for the purchaser as his. property under the sale, or it may occur when they are out of the actual pos session oí the vendor and in the actual possession of an agent or bailee of the vendor at the time of the sale and he instructs him that he has sold them to the purchaser and to deliver them to him, or to retain the possession of them as the property of the purchaser accordingly. In either of these cases, although the delivery to the purchaser is not actual or immediate, still the law construes it to be a delivery to him, because it is delivered to one who by the act becomes his agent and bailee for the purpose, and thai is regarded as equivalent to a delivery of them to the purchaser himself. And therefore it is that a delivery by the vendor of goods sold to a common carrier for the purchaser, is a sufficient delivery to the purchaser to enable the vendor to maintain an action for goods sold and delivered against him, for the moment the goods are delivered to the carrier, it operates in law as a delivery to the purchaser, and the whole property in the goods immediately vests in him; he alone can bring an action for any injury done to them, and if any injury happens to them, it is at his risk. The only exception in such a case to the rights of the purchaser over the goods sold is that the vendor in case the purchaser becomes insolvent, may stop them in transitu. Add. on Contr. 343. There is also such a thing known to the law, as what is called a symbolic delivery of goods bargained and sold, and which is exemplified in the case cited at bar of goods sold while yet at sea by the consignee of them, in which the assignment of the bill of lading and delivery of it to the purchaser is held to constitute a sufficient delivery of the goods themselves to the purchaser to transfer and vest the title and property in them from that moment in him. In all the eases referred to, the delivery to and possession of the carrier, agent, or bailee becomes in contemplation of law, a delivery to and the possession of the purchaser and completes the sale so far as the delivery of the goods is necessary for that purpose.

The defendant had a verdict.