Scott v. King

12 Ind. 203

• Court: Indiana Supreme Court
• Decided: May 27, 1859
• Status: Published

Opinion

Hanna, J.

The parties made a written agreement by which Scott was to deliver, on board of a canal boat, four thousand bushels of shelled, merchantable corn—two thousand bushels to be delivered on the 20th of August, 1856, and two thousand bushels on the 30th of the same month. Five hundred dollars was paid down, 500 dollars was to be paid on the 8th of August, and 200 dollars was to be paid “ upon the delivery of each load,” in all 1,400 dollars.

The complaint averred that the defendant, Scott, was engaged in buying corn, &c., and was possessed of a warehouse, at which the corn was to be delivered on.board of a canal boat.

There is no controversy about the two thousand bushels first to be delivered.

It is averred that before the said 30th of August, at the instance,*&c., of Scott,' and by verbal agreement of the parties, the time for the delivery of the last two thousand bushels, and. for the payment, &c., was extended, without fixing any day, Sec., for performance; and that, on the 3d day of September, 1856, the defendant informed the plaintiffs that the last two thousand bushels were ready for delivery whenever they would send a boat (but no day was fixed for the delivery thereof), and requested the plaintiffs to pay, &c., which the plaintiffs did.

General averment of performance on the part of the plaintiffs, and that on the 6th of said September, they demanded, and were ready, &c., to receive said two thousand bushels; that the defendant failed, Sec., and still fails to deliver the same, nor did he have it to deliver.

■ The answer admitted the execution of the written agreement; the payment of the money; that he was engaged in buying, Sec.; that he delivered the first two thousand bushels mentioned; that at the time of the payment of said last-named sum, to-wit, September 3, 1856, which was in full, he had on hand, and ready for said plaintiffs, in his warehouse, the two thousand bushels yet, at that time, due upon said contract, and that he so informed the said plaintiffs; that no arrangement as to the time of receiving said corn was made; that said corn not being called for by said plaintiffs, remained, &c., until the 6th of said September, _ when the same, with other, &c., was destroyed by fire, wherefore, it was impossible to put the same on board of a canal boat; that said contract was, by defendant, fully performed, except transferring said corn from the said house to a boat of plaintiffs; that the property after, &c., became, and was the property of the plaintiffs, subject to their control, &c.

To this answer there was a demurrer, because the same did not state facts sufficient, &c.

The demurrer was sustained. This ruling presents the first point.

Thus far we are not informed by the pleadings, by direct averment, whether the corn was in bulk with other corn, or whether it was separated or set apart for the plaintiffs. The plaintiffs admit that they were informed by the defendant, of his readiness to perform. The defendant avers that he had on hand, and ready for the plaintiffs, said corn.

From the contract, we are left to infer that it was expected the four thousand bushels would make two boat loads; and it was thereby directly stipulated that 200 dollars was to be paid at the delivery of each load. These pleadings admit and aver, that upon the information, or notice, thus given by the defendant to the plaintiffs, they paid the said last-named 200 dollars.

We have been thus minute in these statements, because, by the acts of the parties, as stated in the pleadings, we are called upon to determine the question of the fulfillment of the contract—the question of delivery and acceptance—the question of title at the time of the disaster.

Suppose that, instead of the property having been destroyed by fire, the defendant had been suddenly, by some other casualty, driven to bankruptcy, and had made a general assignment of his property, on the 6th of September, for the benefit of his creditors, would this two thousand bushels of corn have passed to his assignee, or would these plaintiffs have had the right to take possession of it ? If the bankrupt had been able to pay but ten cents to the dollar, this question would have been important to the interest of the plaintiffs.

Again; suppose that after the defendant had notified the plaintiffs, and they had made payment, as averred, they had suffered the corn to remain in the warehouse, and had not demanded it; could the defendant have sold it again?

A solution of both these propositions depends, we think, upon whether the corn was in a separate parcel, so as to be distinguished and'known.

If it could not be so identified as the property sold to the plaintiffs, the assignees could hold it under the assignment in the one case, and the vendor again dispose of it, in the other.

So, in the case at bar, we think that, as every pleading should be construed most strongly against the pleader, the facts averred were not sufficient to divest the vendor of title in the com, and vest it in the vendee. There was no direct averment that the corn was in a condition to be distinguished, identified, and known. There was a readiness to perform shown, and notice to the plaintiffs of that fact, and that the plaintiffs, thereupon, did an act which they were, by the terms of -the contract, to do upon the delivery of the com, to-wit, they made payment in fall. These acts would have vested the title in the vendee if the purchase had been of a specific article, as a certain horse, or certain cattle, as in the case of Bradley v. Michael, 1 Ind. R. 551. Nevertheless, there are decisions which go very far, if not the whole length, in sustaining the defense here attempted to be made. Whitehouse v. Frost, 12 East. 612.—Damon v. Osborn, 1 Pick. 476.

But we think the weight of authority is against the defendant, if his proof should but sustain this answer. Murphy v. The State, 1 Ind. R. 366, and authorities there cited. 1 Pars, on Cont. 441, and cases cited.

After the demurrer was sustained to the answer, the defendant filed an amended answer, in substance, that he admitted all the facts stated in the complaint except 1he averments of performance by the plaintiffs, and averred that they did not perform, in this, that they failed within a reasonable time to send a boat, &c., for the corn, &c., although said corn had been set apart and measured by said defendant, and was ready to be transferred to canal boats, at the time of the receipt of the full amount of the purchase-money by the defendant, to-wit, &c., and remained so set apart, &c., until the morning of the 6th of September, 1856, when the same, yet being in the warehouse, &c., by reason of the want of reasonable diligence upon the part of the plaintiffs, was destroyed by fire, and the transferring, &c., became impossible, &c. Wherefore, &c.

This amended answer was demurred to, and the demurrer sustained, on the ground that it does not state facts sufficient, &c.

This ruling presents the remaining point to be considered in the case.

It should be borne in mind that the complaint states that on the 3d of September, the defendant notified or informed the plaintiffs that he had the corn ready, and requested payment, which was made in full. The answer avers that at that time the corn was measured and set apart for the plaintiffs. All that remained for the defendant to do was to transfer the corn from his warehouse (which is shown by the pleadings to have been on the canal) on to the boat. This, perhaps, by the terms of the contract, the plaintiffs might have insisted upon, before they paid the remaining 200 dollars; but as they paid that 200 dollars •which, by the contract, was not due until the corn was delivered; and as it is averred the corn had then been set apart, so that the same could be identified and distinguished; we cannot see why the transaction from thenceforth should not be governed by the same rules governing the sale of other specific articles of personal property.

In the case cited in 1 Ind. II. 551, Michael purchased of Bradley, sixteen head of fat cattle for 400 dollars, and as much more as they should come to at four cents a pound when weighed at, &c. He paid 350 dollars, took away part, and was to pay 50 dollars more on receiving the cattle, &c. It is said that, “by the contract of purchase, the property in the cattle passed into Michael,11 &c. So, “by a regular sale, without delivery, the property is so absolutely vested in the vendee, that if A. sells a horse to B. for ¿£10, and B. pays him earnest, or signs a note in writing, of the bargain, and afterwards, before the delivery of the horse, or money paid, the horse dies in the vendors custody, still he is entitled to the money; because, by the contract, the property was in the vendee.” Blacks. Comm., Book ii., p. 449.

Another writer says: “But when everything is done by the seller, even as to parcel of the quantity sold, to put the goods in a deliverable state, the property, and consequently the risk of the parcel, pass to the buyer; and as to so much of the entire quantity as requires further acts to be done on the part of the seller, the property and the risk remain with the seller.” 2 Kent’s Comm. 390.'

So much, then, in reference to the sale of a specific article of personal property. The position, that when the corn, in the case at bar, was set apart, and paid for by the plaintiffs, it should be governed by the same rules, and become the property of the vendees, is, we think, sustained by the case of Thompson v. Gray, 1 Wheat. 75.—3 Curtis, 471.

In that case, it appeared that the Potomac company had been created a corporation, with authority to raise 300,000 dollars by lotteries, and had published a scheme, &c. Gray and one Milliga/n projected another scheme, which was submitted to the managers, together with a proposition, to the effect that if such scheme was adopted, they each engaged to take two thousand five hundred tickets, to be paid for in a certain manner designated, and approved security to be given on the delivery of the. tickets. This scheme was approved of, and the original one abandoned; and it was admitted that the proposition was accepted, and became a binding contract between the parties. Gray selected two thousand five hundred tickets by delivering a schedule specifying the numbers of the tickets, &c., to the agent of the lottery. Some of the tickets having been disposed of, a second schedule was furnished by Gray, who received a part, to-wit, thirteen hundred tickets. The others he did not receive. An action of trover was commenced by Gray, against the agent of the lottery, to recover a ticket against which a prize of 20,000 dollars was drawn, on the second day. The ticket was not one of the thirteen hundred delivered to Gray; but on the trial, a bundle'containing twelve books of tickets, of one hundred each, was produced by the agent—being the remaining numbers named in the schedule of Gray—and amongst others the ticket against which the prize was drawn. On each book was the name of the plaintiff, in his own handwriting, and on the envelope of the whole was indorsed in the handwriting of the agent, the words “ Robert Gray, 12 books.” The tickets were not paid for, nor security given nor offered before the drawing took place. Chief Justice Marsahll, in delivering the opinion of the Court, says: “Was the purchase and sale of the twelve books, not delivered, so complete that the tickets had become the property, and were at the risk of Gray!” In answer to this inquiry, he says, among other things, that, “ When the vendee, in execution of this contract, selects the number of tickets he has agreed to purchase, and the vendor assents to that selection, when they are separated from the mass of tickets, and those not actually delivered are set apart and marked as the property of the vendee; what then is the state of the contract? It certainly stands as if the selection had been previously made and inserted in the contract itself. An article purchased in general terms from many of the same description, if afterwards selected and set apart with the assent of the parties as the thing purchaséd, is as completely identified, and as completely sold, as if it had been selected previous to the sale and specified in the contract.”

As to the question of security, it was decided that it was not a condition precedent, but that “the managers could have required, and have insisted on this security; but they might waive it without dissolving the contract.”

It was there held that the property in the tickets changed when the selection was made and assented to.

So, in the case at bar, the contract was for “ shelled, merchantable corn.” It is averred that corn was measured .and set apart; and, we think, that selection was assented to by the plaintiffs by their conduct, in making full payment, and the right to require the corn to be first delivered on the boat, if such right at any time existed, was thereby waived; and the article remained at their risk.

W. C. Wilson and G. Gardiner, for the appellant (1). II W. Chase and J. A. Wilstach, for the appellees (2).

If the general doctrine laid down in the case in 1 Wheat, is correct, that after articles are set apart they are as completely sold as if they had been selected previous to the sale, &e., then the case at bar, after the corn had been set apart, would fall within the reasoning of the same Court in a later case, where the purchasers of pork and flour in the warehouses of the vendors, in India/na, took from each of the vendors a written memorandum of the sale, with a receipt for the money, and an engagement to deliver them on board of canal boats, soon after the opening of canal navigation.

These evidences of title were afterwards delivered to one Gibson, in New York, with an order indorsed thereon to said vendors to deliver the property to him. This indorsement and delivery was in consideration of the advance of money then made to said purchasers by Gibson, and it was held that the legal effect thereof was the transfer of the legal title and the constructive possession of the property to him. The money was advanced, in the usual course of trade, upon such warehouse documents; and the Court held that the execution and delivery of those documents, by the original vendors, transferred the property and the possession of the pork, &c., to the purchasers, and the vendors from that time held it for them as their bailees; and that, as respects the legal title, there can be no distinction between the advance made by Gibson and the case of an actual purchaser. Gibson v. Stevens, 8 How. 384. See, also, Pierce v. Gibson, 2 Ind. R. 408; Mansing v. Turner, 2 Johns. 13. We are of opinion that the demurrer to the amended answer should have been overruled.

Per Curiam.

Thejudgment is reversed with costs. Cause remanded, &c.