Cunningham v. Ashbrook

• Decision Date: 31 March 1855
• Parties: CUNNINGHAM, Plaintiff in Error, v. ASHBROOK & OTHERS, Defendants in Error.
• Court: Missouri Supreme Court

20 Mo. 553

CUNNINGHAM, Plaintiff in Error,

v.ASHBROOK & OTHERS, Defendants in Error.

Supreme Court of Missouri.

March Term, 1855.

1. As a general rule, goods existing separately and ready for immediate delivery, are the only proper subjects of a common law sale, which is, strictly speaking, a transaction operating as a present transfer of title, and does not include executory contracts for the sale and delivery of goods to be separated from a larger mass, or to be afterwards procured or manufactured for the buyer.

2. To constitute a delivery, within the meaning of the statute of frauds, there must be not only a change of the actual possession, but a change of the civil possession, which is a holding of the thing, with the design of keeping it as owner; and this is a question of fact for a jury.

3. The principle that, in a sale of goods, no title passes, while any act, such as counting, weighing or measuring, remains to be done by the seller, is only applicable when such act is necessary to separate the goods from a larger mass; and does not apply to the sale upon fixed terms, by weight to be subsequently ascertained, of goods already separated, in which case the title passes by delivery; and as a consequence, the loss by a destruction of the goods, after they are delivered and before they are weighed, will fall upon the buyer.

4. Although there is no sale until the price is settled, yet it is settled within the meaning of this rule, where the terms are so fixed that the sum to be paid can be ascertained by weighing, without further reference to the parties themselves.

5. As in the sale of an entire drove of hogs, upon fixed terms, by net weight, a jury would be at liberty to infer delivery from change of possession, an instruction which would be understood to assert, as a matter of law, that this inference would be repelled by the fact that the hogs were to be subsequently weighed, is erroneous.

Error to St. Louis Court of Common Pleas.

This was an action to recover the price of a drove of hogs, alleged in the petition and denied in the answer to have been sold and delivered.

At the trial before a jury, it appeared in evidence that the defendants were engaged in the business of slaughtering and packing hogs for themselves, and also slaughtering for other packers. They had an arrangement with McAllister and also with Whitaker, who were packers, that each should have one-third of all the hogs slaughtered by them, they to attend to the buying, and do the slaughtering, for the sake of the offal. There was an agent employed to buy, who testified that he bought sometimes for the defendants, and sometimes for McAllister and Whitaker, but principally for the defendants. This agent engaged all the plaintiff's hogs, 148 in number, at $4 15 per hundred, net weight, to be delivered at the slaughter house of the defendants, and killed and weighed by the buyer. He did not state for whom he was buying, but the seller supposed it was for the defendants, as he was known to be their agent. The agent testified that when he bought the hogs, he did not know whether the defendants, McAllister or Whitaker would get them. The hogs were taken to the slaughter house of the defendants the same day, and the next morning killed. The defendants then notified the seller to call next day at the packing house of McAllister, who would take the hogs, and see them weighed and get his pay. That night, however the slaughter house burned down, and the hogs were destroyed. It was in evidence that it was customary for hogs to be weighed at the packing house, in the presence of the seller, who then received his pay from the packer; and one witness undertook to testify that, by the custom, the ownership of the seller continued until the hogs were weighed.

The Court of Common Pleas gave the following instruction:

“If the hogs were sold by net weight, to be ascertained by weighing the hogs after they were slaughtered and cleaned, and not to be paid for until so weighed, and the hogs were destroyed by an accidental fire before they were weighed, then the loss falls upon the seller, unless he shows that the parties intended the sale to be absolute and complete before the weighing.”

The plaintiff's submitted to a non-suit, and afterwards sued out this writ of error.

Glover & Richardson, (with whom was D. C. Woods,) for plaintiff in error.

The instruction given was erroneous. It attributes an undue importance to the matter of weighing, which is only essential when it is necessary to the act of delivery. So Kent says, (2 vol. 496,) “if the goods be sold by number, weight or measure, the sale is incomplete, and the risk continues with the seller until the specific property be separated and identified.” The reason of this is plain. If ten hogs are sold out of a lot of 100, the particular ten sold must be counted out and separated before they can be delivered. But we maintain that 148 hogs in a pen are a lot of goods and chattels, designated, set apart, separated, identified, and certain, so as to be the subject of a complete sale, and in a deliverable condition; and having been delivered to the defendants according to the contract, the stipulation to weigh was intended, not to suspend the passing of the title, but only to enable the parties to settle their accounts. (Damon v. Osborn, 1 Pick. 476; Parks v. Hall, 2 Pick. 212; 6 Pick. 280; 12 Pick. 76; 4 Pick. 516; 13 Pick. 175; 6 Watts & Serg. 357; 20 Pick. 280.) The instruction of the court ought to have rested the evidence of title upon the question of delivery made by the pleadings. The error consisted in supposing that the title ever passes by an act of weighing as such. Again, the instruction was erroneous because the defendants had dealt with the hogs as their own. (2 Kent. 501.) Again, it was erroneous, because, at the time of the destruction of the property, the defendants were not in a condition to object either to the quantity or quality of the goods. (2 Kent, 495; 14 Me. 502; 7 Cow. 86.)

J. A. Kasson, for defendants in error.

It is contended that the instruction was correct. The hogs being sold by net weight and not to be paid for till this was ascertained by weighing, how can the contrary be contended? If some act remains to be done, in order to ascertain the quantity, or quality, or price, until this is done, the property remains at the risk of the vendor, Thus if weighing remains, (Hanson v. Meyer, 6 East, 625,) or the contents of bales are to be counted, (2 Camp. 240,) or cash sale, and price not paid. (3 Barn. & Ald. 680.) In this case, delivery, acceptance and price were all to be by net weight. (See further, 2 B. & Cress. 511; 3 B. & Ald. 325; 5 Taunt. 621-2 and note; 14 Wend. 35-6; 20 Pick. 283-4.) It is to be remembered that the thing sold was not the hog, but the pork. Hence, the slaughterers were the bailees of the sellers for killing and reducing the hog to the condition in which it was to be delivered, to-wit, net weight, after being cleaned. The plaintiff seeks to recover in the face of a stipulation that the price was not to be paid until the hogs were weighed.

LEONARD, Judge, delivered the opinion of the court.

The only things essential to a valid sale of personal property at common law were, a proper subject, a price, and the consent of the contracting parties, and when these concurred, the sale was complete, and the title passed without anything more. (2 Black. Com. 447; Bloxom v. Sanders, 4 Barn. & Cres. 941.) The term sale, however, in its largest sense, may include every agreement for the transferring of ownership, whether immediate or to be completed afterwards, and goods, in reference to the disposition of them by sale, may be considered as existing separately and ready for immediate delivery, or as a part of a larger mass from which they must be separated by counting, weighing or measuring, or as goods to be hereafter procured and supplied to the buyer, or to be manufactured for his use. Goods of the first sort are the only proper subjects of a common law sale, which is strictly a transaction operating as a present transfer of ownership, and does not include executory contracts for the future sale and delivery of personal property, although there are some apparently anomalous cases in our books in which transactions in reffence to goods to be separated from a mass seem to have been treated, where there had been a constructive delivery, as valid sales, producing a present change of property.

The general rule, however, is otherwise, and all the different sorts of goods to which we have referred, except the first, are, under our law, the proper subjects only of executory agreements--contracts for the future sale and delivery of them.

The Roman law, however, it is said, dealt differently with this subject. In that system of jurisprudence (Bell on Contract of Sale, 9,) “a sale was not an immediate transmutation of property, but a contract of mutual and personal engagements for the transference of the thing on the one hand and the payment of the price on the other, without regard to the time of...