Bigley v. Risher & Wilson

• Decision Date: 11 November 1869
• Citation: 63 Pa. 152
• Court: Pennsylvania Supreme Court
• Parties: Bigley <I>versus</I> Risher & Wilson.

63 Pa. 152

Bigley versus Risher & Wilson.

Supreme Court of Pennsylvania.

November 5, 1869.

November 11, 1869.

November 5th 1869.

Before THOMPSON, C. J., REED, AGNEW, SHARSWOOD and WILLIAMS, JJ.

Error to the District Court of Allegheny county: No. 37, to October and November Term 1869.

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M. W. Acheson, for plaintiff in error.—The question was whether there was a sale. The court assumed in part of the charge that this was conceded and in others that it was in dispute, and thus left the jury at loss; this was error: Selin v. Snyder, 11 S. & R. 319. The price was not ascertained and therefore there was no sale: Nicholson v. Taylor, 7 Casey 128. A sale is not complete if anything remains to be done: Story on Sales, sect. 296, 297; Zagur v. Campbell, 4 Campbell 240; Wallace v. Brees, 13 East 522: Nesbit v. Burry, 1 Casey 208.

R. & S. Woods, for defendants in error.

The opinion of the court was delivered, November 11th 1869, by READ, J.

The leading case, in Pennsylvania, as to what constitutes a complete sale of a chattel, as between the parties, is Scott v. Wells, 6 W. & S. 357, in which the law is clearly laid down, in the charge of Judge Jones to the jury, and in the opinion of Chief Justice Gibson. "I grant," says Chief Justice Gibson, "that a sale may be fatally defective in its members; and that by the civil, as well as the common law, the specification of a price is necessary to constitute it."

In the case before us, there was no actual delivery to and possession of, the coal-boat taken by the defendant, and no specification of the price is to be found anywhere in the evidence. "We did not prove the price," say the plaintiffs' counsel, and the boat lying in the plaintiffs' harbor, and in his custody, from which it had not been removed, was swept away and lost before this essential member, the price, was fixed or specified.

It is clear from the judge's charge, and his refusal of the defendant's first point, that he considered there was a sale concluded, and that the only question was, was there a delivery? "It would seem to be conceded — but this is for you — there was a sale." This was not conceded by the defendant, but denied, and yet the charge proceeds upon this hypothesis. There was a fatal defect in this so called sale, there was no price, and so the court should have informed the jury. They should have said if there is no price specified and proved, there is no sale.

"Sale," said Mr. Justice Wayne in Williams...