Brewer v. Salisbury , 9 Barb. 511 ( 1850 )

Hons on, J.

We are referred by the counsel for the defendants to the case, among others, of Downer v. Thompson, (2 Hill, 137,) where an order by the defendant, who resided at Westchester, addressed to the plaintiff at Chitteningo, for 250 barrels of cement, was held by the court not to be complied with by sending 260 barrels. This' case went to the court of errors, and all the members, except two, voted for reversal. (See 6 Hitt, 211.) Senator Hopkins observed, “ that the excess would hardly seem to be so large as to preclude a jury from inferring that it was only added to make sure of having delivered enough, the article being liable to some loss by leakage, and the excess being of no very great value as compared with the anticipated profit upon the whole. If the rule is to be a rigid one, that no more shall be delivered than is contracted for, then the least overplus must vitiate the delivery. But if some latitude is to be allowed for the sake of abundant caution, as I think there should be, it is a question proper for the jury to decide, how much excess there may be without vitiating the delivery.” In 14 Wend. 31, the plaintiff sold some carpeting to one Simmons, for cash, who took a roll home, to cut off what he wanted. About three weeks after, the remnant was returned to the plaintiff, who presented his bill for payment, but in the meantime Simmons had sold all his furniture, including the carpet, to the defendant, an auctioneer, and obtained an advance on it of $850, giving him possession, and absconded. The court said there was no delivery by which the plaintiff’s title to the carpet was divested. ,And they also said, if there was a delivery, obtained by false pretenses, which was clearly proved, then by the revised statutes the property was feloniously obtained, and the owner was entitled to recover it from a bona fide purchaser. In Ward v. Shaw, (7 Wend. 404,) the plaintiff sued the defendant for two fat cattle, taken by him as sheriff, out of the possession of Crawbuck, who was a butcher, and had agreed to purchase them of the plaintiff at $7,50 per 100 lbs. which the quarters would weigh when slaughtered. C. was to prepare the cattle for slaughtering, to slaughter them, take the quarters to market, weigh them, and pay the amount they would come to, which was to be received by the plaintiff in full of the oxen. It was held that the title did not pass to Crawbuck. Here the sale was for cash, i payment was not waived, and no part of it was made, and could I not be according to the terms of the contract, until the price was í ascertained by weight. This, with the foregoing cases, is distinguishable from the case at bar. It is true, as a general proposition, that if any thing remains to be done, as between the seller and the buyer, before the goods are to be delivered, a present right of property does not attach in the buyer. (2 Kent’s Com. 496.) The goods sold must be ascertained, designated, and separated from the stock or quantity with which they are mixed, before the property can pass. If the goods be sold in bulk, and for a single price, the sale is perfect and the risk with the buyer; but if they be sold by number, weight, or measure, the sale is incomplete and the risk continues with the seller, until the specific property be separated, &cc. In Crofoot v. Bennett, decided by the court of appeals in May, 1849, (2 Comst. 258,) the owner of a brick yard sold' to the defendant 43,000 bricks, to be taken out of an unfinished kiln containing a larger quantity. He also delivered to the defendant possession of the yard, and agreed with him to burn the kiln, which he did, and the owner then executed to the plaintiff a bill of sale of all the bricks in the kiln; held that the delivery was not simply of the specific brick eventually taken by the plaintiff, but of the whole, with the privilege of selecting the 43,000. Strong, justice, in delivering the opinion of the court, among other things, says: “ If the goods sold are clearly identified, then although it may be necessary to number, weigh, or measure them in order to ascertain what would be the price of the whole, at a rate agreed upon between the parties, the title will pass; but if a given number out of the whole are sold, no title is acquired by the purchaser until they are separated, and their identity thus ascertained. The distinction in these cases does not depend so much upon what is to be done, as upon the object which is to be effected by it. If that is specification, the property is not changed; if it is merely to ascertain the total value at designated rates, the change of title is effected.” And again, “ If one sells an article and delivers it, the delivery would be none the less effectual, because the vendor happened to be employed to perform some additional work'upon it, even at his own expense.”

In the case before us thirty dollars were paid as the probable value of the hides; the vendor said they were finished, and seemed to suppose that nothing further was to be done. He said the plaintiff could have the leather; and left his man, Bolán, with the plaintiff to select the sides, which were put in a pile by themselves. A part, viz. five sides, were taken away by the plaintiff; and the rest, which the plaintiff supposed needed some cleaning, were left with Bolán for that purpose; and the trifling difference between the estimated and ascertained value of the leather, should there be any for the plaintiff to pay, did not seem to be considered by the parties as rendering the delivery less complete; or if there was any question as to what they intended, the case was fairly left to the jury, whose verdict J. think was right; consequently the judgment of the county court ought to be reversed, and that of the justice affirmed.

H. Gray, J. and Shankland, J. concurred.

Mason, J. dissented.

Judgment of county court reversed.