McNamara v. Edmister , 18 N.Y. Sup. Ct. 597 ( 1877 )

Bookes, J.:

No question arises in this case under the statute of frauds, nor is it claimed that the sale of the buckwheat by Murphy to the plaintiff was with intent to hinder, delay or defraud the creditors of Murphy. And it may be here added that the contract between Murphy and the plaintiff was, in form, a complete bargain and sale with full payment of the purchase-price. Nothing remained for the purchaser to do but to take possession. The buckwheat was parcel of a lot standing in a field in shocks, and was pointed out at the time of sale; Murphy agreeing to thrash it out, as soon as the weather would permit, and make it merchantable by due winnowing. Had the grain then been in the granary, instead of in the shock, the case would have been like that of Kimberly v. Patchin (19 N. Y., 330), and the title would have passed. It was held in the case cited that, upon a sale of a specified quantity of grain, its separation from a mass undistinguishable in quality and value in which it is included, is not necessary to pass the title when the intention to do so is otherwise clearly manifested. (See, also, Russell v. Carrington, 42 N. Y., 118, and Crofoot v. Bennett, 2 id., 258.) In such case the title passes without actual separation or delivery of the property. Bnt it is said the grain was thereafter to be threshed and made merchantable. So in Terry v. Wheeler (25 N. Y., 520), the property was to be transported by the vendor to a place named for delivery. Notwithstanding this, it was held that the sale was complete, and that the title passed to the purchaser. The title passes to the purchaser on a sale of personal property without delivery (Wetmore v. Jaffray, 16 Sup. Ct. Rep. [9 Hun], 140), save where something remains to be done, which, by the contract, is a condition precedent thereto. (Terry v. Wheeler, 25 N. Y., 520; see, also, Bates v. Coster, 8 Sup. Ct. Rep. [1 Hun], 400, and cases there cited.) There was no condition precedent to the passing of the title in this case.

There is something more in the case in hand than appeared in the cases cited. When the vendor here was ready to thresh, he was directed by the purchaser to put the grain in the granary and keep it there until he should call for it. The vendor threshed it out and put it in the granary as directed. From this time most certainly must the transaction be deemed to have been an executed sale, so as to pass the title. The decisions in the cases cited seem to require a reversal of the judgment directed by the referee in this case.

Judgment reversed, new trial granted, with costs to abide the event, and reference discharged.

Learned, P. J., and Boardman, J., concurred.

Judgment reversed and new trial granted, costs to abide event, and reference discharged.