Barber v. Andrews

• Decision Date: 23 March 1908
• Citation: 69 A. 1,29 R.I. 51
• Parties: BARBER et al. v. ANDREWS, Deputy Sheriff.
• Court: Rhode Island Supreme Court

69 A. 1

29 R.I. 51

BARBER et al.

v. ANDREWS, Deputy Sheriff.

Supreme Court of Rhode Island.

March 23, 1908.

Exceptions from Superior Court, Providence County.

Action by Thomas H. Barber and others against Theodore S. Andrews, deputy sheriff. Verdict for plaintiffs, and defendant excepts. Exceptions overruled, and cause remitted for judgment on the verdict.

Argued before DOUGLAS, C. J., and DUBOIS, BLODGETT, JOHNSON, and PARKHURST, JJ.

Frederick C. Olney and W. Louis Frost, for plaintiffs. P. Henry Quinn, for defendant.

DOUGLAS, C. J. This action is brought to recover damages for the conversion of 20 tons of hay which were attached by the defendant, a deputy sheriff, as the property of one George A. Carr, and sold by order of the court.

The plaintiffs aver that at a time previous to the attachment they bought the hay of Carr, and paid for the same by remitting a cash claim against him and by delivery of a horse to him. The hay in question was part of a larger quantity of good hay stored in bulk at the east end of the mow in a barn occupied by Carr. In front and over this lot of hay a quantity of millet and rye straw was placed, from which from time to time Carr fed his cattle. According to the testimony of Carr and of the plaintiffs, it was agreed that the plaintiffs were to take the hay away at their convenience, that 500 cubic feet should be estimated as a ton, and the 10,000 cubic feet should be ascertained by measuring from the east end of the mow taking the entire width of the barn. No separation of the 20 tons was made, and no measurement or weighing actually took place. The plaintiffs rely upon this agreement as to the method of measurement as equivalent to an apportionment.

The underlying principle of all the cases on the subject is that to constitute a sale the parties must intend to transfer the immediate ownership in some specific thing. 1 Mechem on Sales, § 497; The Elgee Cotton Cases, 22 Wall. (U. S.) 180, 187, 22 L. Ed. 863; Riddle v. Varnum, 20 Pick. (Mass.) 280, 283, 284. When actual delivery is made, this is prima facie proof of the intention to pass the title. When the vendor retains possession, it is prima facie proof that the transaction is an executory agreement to sell. The effect of delivery or of retention of possession by the seller may be rebutted by more cogent evidence of intention. "The parties may lawfully agree to an immediate transference of the property in goods, although the seller is to do many things to them before they are to be deliverable, and, on the other hand, they may agree to postpone the vesting of the property till after the fulfillment of any conditions they please." Black. Sal. 120. But it is impossible to pass title to property in existence which is not identified by the terms of the contract. The vendor and the vendee must have in mind the same thing in order to pass the title to it Two questions therefore arise in this case; First, did the parties in good faith make the contract which they testify to? Secondly was the designation of the subject-matter in the terms of the contract sufficient to identify the thing sold?

It is shown, in support of the claim of good faith, that the plaintiffs were engaged in the business of cutting and sawing lumber, and had in operation several portable sawmills, which they moved from place to place as the timber was cut; that they also owned and employed a number of horses; that the location of Carr's barn was a convenient place of storage for the hay which they did not need to use immediately; that the price paid was a fair one, and the mode of estimating the quantity convenient and approximately correct. These considerations and the declarations of the parties satisfied the jury that a bona fide sale was intended, and we cannot say that they erred in so finding. The question of the intention of the parties is usually one to be determined from all the facts and circumstances surrounding the particular case, and, like such questions generally, is pre-eminently a question for the jury. 1 Mechem on Sales, § 502.

The second question, at first sight, presents more difficulty. The defendant urges with plausibility that the sale of 20 tons of hay out of a larger quantity is as indefinite as the sale of 50 tons of oil to be drawn from a mass of 90 tons, as in Wallace v. Breeds. 13 East, 522. Or 10 tons out of 18 tons of flax, as in Busk v. Davis, 2 M. & S. 397. Or 20...