Dalrymple v. Randall, Gee & Mitchell Co.

• Decision Date: 24 October 1919
• Docket Number: No. 21116.,21116.
• Citation: 144 Minn. 27,174 N.W. 520
• Court: Minnesota Supreme Court
• Parties: DALRYMPLE v. RANDALL, GEE & MITCHELL CO. et al.

144 Minn. 27

174 N.W. 520

DALRYMPLE

v.RANDALL, GEE & MITCHELL CO. et al.

No. 21116.

Supreme Court of Minnesota.

Oct. 24, 1919.

Appeal from District Court, Hennepin County; Joseph W. Molyneaux, Judge.

Action by William Dalrymple against the Randall, Gee & Mitchell Company and the trustee in bankruptcy of R. J. Johnstone. Judgment for plaintiff, and the trustee appeals. Affirmed.

Syllabus by the Court

Where a sale is for cash, payment and delivery are concurrent and mutually dependent acts, and if the vendor makes delivery in expectation of immediate payment, such delivery is conditional only and he may reclaim his goods if payment be not made.

A sale is presumed to be for cash, in the absence of evidence indicating that credit is to be given.

Sales made on the Minneapolis Chamber of Commerce are governed by the rules and customs of the Chamber.

Under these rules grain on track sold in carload lots is to be weighed by the state weigher at the time it is unloaded and is to be paid for before two o'clock of the day on which such weights are given out. Plaintiff sold a carload of grain on the floor of the Chamber to R. J. Johnstone, who immediately resold it to a third party, who again resold it. It was switched to an elevator, where it was unloaded, weighed and mixed with other grain. Johnstone failed to pay at the prescribed time and on the same day plaintiff notified Johnstone's vendee, who then had the proceeds of the grain, that the grain, not having been paid for, belonged to him. Held, that the finding of the trial court that the sale was for cash, that delivery of the grain was conditional on payment, that the condition had not been waived, and that plaintiff remained owner of the grain and entitled to its proceeds is sustained by the evidence. Kerr, Fowler, Schmitt & Furber, of Minneapolis, for appellant.

H. V. Mercer, of Minneapolis, for respondent.

TAYLOR, C.

Plaintiff sold a carload of grain on track in the city of Minneapolis to R. J. Johnstone, who was then insolvent, but this fact was not known to plaintiff. Johnstone immediately resold the grain to the Randall, Gee & Mitchell Company who in turn immediately resold it to the Cereal Grading Company who unloaded the grain two days later and commingled it with other grain. The above parties were all members of the Minneapolis Chamber of Commerce, and the above sales were all made on the exchange floor of the Chamber on March 3, 1915, and were made under and according to, and are governed by, the rules, regulations and customs of the Chamber. Johnstone failed to pay for the grain and was subsequently adjudged an involuntary bankrupt and a trustee in bankruptcy was appointed of his estate. The Randall, Gee & Mitchell Company did not pay for the grain, but received full payment therefor from the Cereal Grading Company. The grain having been commingled with other grain, so that it could not be identified, plaintiff brought this action to recover its proceeds from the Randall, Gee & Mitchell Company and made the trustee in bankruptcy a party defendant. The Randall, Gee & Mitchell Company admitted having the proceeds of the grain and that such proceeds belonged either to plaintiff or the trustee, and, under and pursuant to a stipulation, paid the same into court, and was released from further liability. The case was tried before the court without a jury with the trustee in bankruptcy as the sole defendant. The court found as a fact that title to the grain had never passed to Johnstone and rendered judgment awarding its proceeds to plaintiff. The trustee appealed.

It may be noted at the outset that the controversy is wholly between plaintiff as vendor and the trustee in bankruptcy of his insolvent vendee and that no rights of the subvendees are here involved.

Appellant contends that the evidence does not sustain the finding that plaintiff remained owner of the grain or its proceeds but shows conclusively that title to the grain had passed to Johnstone and that its proceeds belong to his estate.

The grain had been consigned to plaintiff for sale by the Wing Farmers' Co-operative Association of Wing, N. D., and on March 3d was on track in Minneapolis. As was customary among members of the Chamber of Commerce, plaintiff sold the grain as his own without disclosing his principal or that he was acting as agent. Before bringing this action he paid the consignors for the grain and received an assignment from them of all their interest in both the grain and its proceeds.

Where a sale is for cash, payment and delivery are concurrent and mutually dependent acts, and if the vendor makes delivery in expectation of immediate payment, such delivery is conditional only and he may reclaim his goods if payment be not made. Fishback v. G. W. Van Cusen & Co., 33 Minn. 111, 22 N. W. 244;Globe Milling Co. v. Minneapolis Elevator Co., 44 Minn. 153,46 N. W. 306;National...