Cassinelli v. Humphrey Supply Co.

• Decision Date: 05 September 1919
• Docket Number: 2339.
• Citation: 183 P. 523,43 Nev. 208
• Parties: CASSINELLI v. HUMPHREY SUPPLY CO.
• Court: Nevada Supreme Court

183 P. 523

43 Nev. 208

CASSINELLI v. HUMPHREY SUPPLY CO.

No. 2339.

Supreme Court of Nevada

September 5, 1919

Appeal from District Court, Washoe County; R. C. Stoddard, Judge.

Action by Pietro Cassinelli against the Humphrey Supply Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Mack & Green and A. F. Lasher, all of Reno, for appellant.

Cheney Downer, Price & Hawkins, of Reno, for respondent.

DUCKER J.

Appellant who was plaintiff in the court below, brought his action against the Humphrey Supply Company to recover the unpaid purchase price of 296 5/6 tons of hay. The complaint alleges that at the time of the sale the hay was in a deliverable condition, and was agreed to be delivered and was delivered in the stack at and where the same was then stacked, and nothing remained to be done with reference thereto to pass the title to defendant, and it was the intention of plaintiff and defendant to pass the title to the hay by agreement, and that the title did thereby pass from plaintiff to defendant. It is also alleged that no part of the purchase price of said hay has been paid except the sum of $500, and that the remainder of the purchase price of the hay, the sum of $2,468.33, is due, owing, and unpaid. All of these allegations are denied in the answer except the payment of the sum of $500, and in the counterclaim the return of this sum is demanded.

The answer also alleged the following agreement in writing:

"No 964.

Humphrey Supply Company.

Dec.

1st. 1916.

Bought of Peter Cassinelli the following. I have sold all of my hay to Humphrey Supply Co., except about thirty tons at Ten Dollars per ton to be measured by same rule as sold to Nevada Packing one year ago, to be fed by P. Cassinelli free or we can feed ourselves, Cassinelli to furnish team and wagons.

The above hay to be delivered at once when measured and I hereby acknowledge receipt of $500.00.

His mark X Peter Cassinelli,

Seller.

H. L. Nichols,

Buyer.

W. E. Fuhrman."

On the issues thus made the trial court found that on December 2, 1916, all the hay referred to in this action was consumed by fire and destroyed; that at the time the hay was so burned and destroyed all of said hay was owned and in the possession of the plaintiff herein; that the hay in the stacks was not in a deliverable condition at the time it was burned, and had not been delivered to, or accepted by, the defendant; that the terms of said written agreement had not been complied with at the time the hay was burned; that the title to the hay or any of the hay referred to did not pass from the plaintiff to the defendant.

From the judgment rendered in favor of defendant and an order denying a motion for a new trial this appeal is taken.

A number of errors are assigned by appellant, and the principal one is that the court erred in finding that the hay in the stacks was not in a deliverable condition at the time it was sold, and had not been accepted by the defendant, and that the title had not passed from the plaintiff to defendant. It is insisted that such finding is not sustained by the evidence. On the other hand, respondent contends that the facts found are not reviewable here because they were found on a conflict of the evidence; and the only question we can consider in reference thereto is whether the conclusion that the title to the hay did not pass is a correct conclusion of law to be drawn from the facts found by the trial court.

If there is a substantial conflict of the material evidence upon which the finding rests, this contention may be admitted. The question of whether the title passed depends entirely upon the intention of the parties, if the goods were specific and ascertained goods.

"If the intention is to be determined mainly from a construction of written instruments, the legal effect of which is for the court, and uncontradicted evidence, it is one for the courts." 24 R. C. L. § 275.

"The question is essentially one of fact; and though if the whole contract of the parties is reduced to writing this question is determined by the court, as also if the facts are so clear as to justify but one conclusion." Williston on Sales, § 262.

If the question is one for the court, either by reason of the construction of a written instrument or undisputed facts, this court is not bound by the findings or conclusions of the lower court, but may draw its own conclusion as to the legal effect of the written instrument or other evidence. 3 Cyc. p. 347.

The inquiry arises, therefore, as to how far the finding of the court is based upon conflicting evidence, and necessitates a brief summary thereof.

On November 30, 1916, appellant was the owner of and in possession of two stacks of hay, situated upon his ranch near Reno, and on that day Mr. Small, representing the Humphrey Supply Company, went to appellant's ranch and entered into negotiations with him for the purchase of the hay for the company. The next day, Friday, December 1st, appellant went to the office of respondent in Reno, and the agreement set out in the answer was executed by appellant and respondent. At the time of the execution of the agreement respondent gave appellant its check for $500. Mr. Small was present, and it was agreed between appellant and Mr. Small that they would measure the hay on the following Monday. At some time between the day the agreement was executed and the Monday following all the hay was burned through no fault of either party. This summary comprises all of the uncontradicted evidence that has any bearing upon the intention of the parties. There is also in the record the undisputed testimony of the appellant's two sons that on December 1st, at their father's instance, they measured the hay claimed to have been sold to respondent; but this evidence was retained in the record, by the ruling of the court, only for the purpose of showing the quantity of the hay, in case the court found that there had been a completed sale. The only evidence in which there is a conflict of a substantial nature is as to whether Mr. Small and appellant, when negotiating at the latter's ranch on November 30th, segregated or identified the hay which respondent desired to purchase from the 30 tons which the appellant wished to retain. Appellant testified that on this occasion Small drove a stick in the stack on the east side to indicate the amount of hay he desired and the quantity reserved by appellant. Mr. Small testified that he did not put any stick in the stack and did nothing to designate the portion of the hay appellant was to keep for himself.

From the aforesaid ruling of the court on the evidence of appellant's sons, and its judgment in favor of respondent, it is apparent that the court did not consider their testimony that they found a stick in the stack and measured from it when they measured the hay on December 1st.

There is no intimation of a finding on this conflicting evidence in the findings of the trial court, nor it is mentioned in the brief oral opinion of the court incorporated in the record. Even if the stick was placed in the stack by respondents' agent, the act was, at the most, a mere estimation of the amount of hay desired, and was superseded by the written agreement which fixed the amount of hay to be taken by respondent and the amount to be retained by appellant to a definite number of tons, to be ascertained by actual measurement. The testimony of appellant and Mr. Small on this question was therefore immaterial, and a finding upon it, if made, would have been ineffective.

A consideration of the provisions of the Sales Act (Laws 1915, c. 159) is necessary to a determination of the principal question involved.

We are admonished by the statute to so interpret and construe its provisions as to effectuate its general purpose to make uniform the laws of those states which enact it. Section 74, Uniform Sales Act. Consequently a large number of the authorities cited by appellant, having no reference to the Uniform Sales Act, will not be considered as aids to our construction.

"It is apparent that, if these Uniform Acts are construed in the several states adopting them according to former local views upon analogous subjects, we shall miss the desired uniformity, and we shall erect upon the foundation of uniform language separate legal structures as distinct as were the former varying laws." Commercial Bank v. Canal Bank, 239 U.S. 520, 36 S.Ct. 194, 60 L.Ed. 417, Ann. Cas. 1917E, 25.

Section 76 of the act defines "goods" to "include all chattels personal other than things in action and money." By sections 17 and 18 of the act, goods are divided into two classes-"unascertained goods" and "specific or ascertained goods."

"Sec. 17. Where there is a contract to sell unascertained goods no property in the goods is transferred to the buyer unless and until the goods are ascertained, but property in an undivided share of ascertained goods may be transferred as provided in section 6.

Sec. 18. (1) Where there is a contract to sell specific or ascertained goods, the property in them is transferred to the buyer at such time as the parties to the contract intend it to be transferred. (2) For the purpose of ascertaining the intention of the parties, regard shall be had to the terms of the contract, the conduct of the parties, usages of trade, and the circumstances of the case."

It thus becomes important to ascertain which one of the classifications of the statute embraces the subject-matter of the controversy, for clearly, by the express prohibition of section 17, no property in the hay which was burned could have passed unless the property which respondent desired to purchase had been previously ascertained. If the hay was specific or ascertained...