Haldeman v. Duncan , 51 Pa. 66 ( 1865 )

The opinion of the court was delivered, by

Read, J.

— This is a judgment for want of a sufficient affidavit of defence. The plaintiffs’ affidavit of claim discloses a good cause of action — a purchase of 300 barrels of oil — a payment of the price, and a refusal of the defendant to deliver the oil according to contract. The defendant in his affidavit admits the purchase, the payment of the purchase-money, and his contract to deliver, but alleges that he did deliver the oil to the plaintiffs.

The contract was made at Oil City, on the 14th of February 1865, and is in these words:—

“ Messrs. Duncan & Williams

Bought of William Haldeman, 300 barrels of crude oil in good new barrels, and in good condition — said oil to be clean from water and slush, and to be about 44° gravity; said oil to be delivered at Oil City, ready for shipment on first water, at 12.87J per barrel, $3862.50.

I also agree to pay on the return of said.barrels in Pittsburgh, $3 each in good order.

Received on this bill, $1781.25. Balance to be paid in twenty days,” which balance $2081.25, was paid on the 7th March 1865, and the defendant put the following receipt on this bill:—

“ Oil City, March 7th.

Received payment in full. William Haldeman.”

The first water or rise in the Allegheny and its tributaries, was on or about the 6th March, and the demand and refusal to deliver were on the 21st March. The defendant in his affidavit claims that he did deliver the 300 barrels of oil on the 7th March, and that is the sole question. If these barrels were delivered to the plaintiffs on that day, and became their property, then their loss by the flood on the 17th March, must fall on the plaintiffs, and they cannot recover in this action.

Then was there such a delivery on the 7th March? and for this we must look to the defendant’s affidavit, in which he uses this language: “ On the 7th day of March 1865, after the payment of the money and the signing of the receipt therefor, this deponent took the plaintiff out from his office at Oil City, where said money was paid, to the yard and landing of the deponent, on the bank of the Allegheny river, in Oil City, and pointed out to the plaintiff a large lot of crude oil, which deponent then had lying there ready for shipment, and requested him to select out and take therefrom the 300 barrels to which he (plaintiff) was entitled ■ under his contract; that plaintiff then and there proceeded to test'the gravity'in different .barrels, with a view, as deponent believed, of selecting the 300 barrels to which he was entitled under said contract; and after being engaged some time in testing said oil, and expressing himself satisfied therewith, went away without separating or removing said 300 barrels from the larger bulk of oil then lying there ready for shipment.”

It is clear, from their statement, that the plaintiff never selected the 300 barrels, nor is there any evidence that he intended to do it. He certainly never separated them from the large lot of crude oil, nor did he mark or designate them in any way, so that the identical barrels might be selected from the large number of barrels, which may have been many hundreds or thousands. It is not alleged that the defendant did any of these acts of separation marking a selection.

“The rule, I take it,” says Mr. Justice Rogers, “is now too firmly settled to be shaken, that the goods sold must be ascertained, designated, and separated from the stock or quantity with which they are mixed, before the property can pass — until this be done, it remains the property of the vendor, and not of the vendee” (Hutchinson v. Hunter, 7 Barr 145). The same doctrine is laid down in very apt language in Addison on Contracts, 42, 3, covering completely a case like the present.

The contract contemplated no particular quantity of oil then in existence, but might be filled by any 'oil then existing, or which might be produced before the time of delivery. The vendees paid their money and performed their part of the contract, and if the vendor had selected and separated the !300 barrels from the large lot, and notified the purchasers it was ready for delivery, then his part would have been performed, and the property would have been vested in the vendees.

As there was, therefore, no delivery on the 7th March, the property of the large lot, including the 300 barrels, remained and was in the vendor on the 17th March, when the flood swept the whole away.

When, therefore, the demand for the delivery of the 300 barrels on the 21st March was made by the plaintiffs, they should, in conformity to the contract, have been delivered to the plaintiffs, but this the defendant utterly refused to do.

We do not think the affidavit of defence was sufficient, and, therefore,

The judgment is affirmed.