18 N.Y. 428, Wright v. Baldwin

Citation:18 N.Y. 428
Case Date:December 01, 1858
Court:New York Court of Appeals

Page 428

18 N.Y. 428




New York Court of Appeal

December 1, 1858

Page 429


Lyman Tremain, for the appellant.

Albertus Perry, for the respondent.

Page 430


It is claimed on the part of the defendant that the wheat in controversy in this case, was transported solely under the contract between Tyler, master of the schooner Raleigh, and Reed & Co., of Toledo, by which the latter agreed to load the schooner with a cargo of wheat for Oswego, at 10 1/2 cents per bushel; and that if other persons furnished the wheat under an arrangement with Reed & Co., by which the latter were to receive 12 1/2 cents per bushel for the transportation, the latter alone, and not the owners of the vessel, are directly responsible to the shippers.

This position would be unanswerable if the master had persisted throughout in dealing with Reed & Co. alone. But when, after receiving the wheat, he consented to give shipping bills to the respective owners, he thereby created a privity of contract between himself and such owners, and became responsible directly to them for the safe transportation and delivery of the wheat. The effect of the entire arrangement was, that Reed & Co. were to receive two cents per bushel brokerage, for making the contract in behalf of the owners of the wheat.

The defendant's counsel also contend that inasmuch as the one thousand bushels of wheat, for which this action is brought, were never separated from the residue of the wheat with which the vessel was loaded, nor in any way distinguished from the general mass, the action cannot be sustained--for the want of any identification of the property purchased by the plaintiff. The authorities upon which the counsel relies to support this position are those which hold, that in order to pass the title to part of a general mass of property, it is necessary that the portion intended to be sold should be separated from the residue, or in some way designated so as to be capable of being identified. This is no doubt true where the aggregate, out of which the part sold is taken, consists of separate articles capable of being readily distinguished from each other. But when the whole mass consists of portions which are homogeneous and undistinguishable,

Page 431

as for instance, wine in a cask, or wheat in a bin, authorities are not wanting to show that the title will pass...

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