Dixon v. Myers & Co.
| Citation | 48 Va. 240 |
| Court | Supreme Court of Virginia |
| Decision Date | 24 February 1851 |
| Parties | DIXON v. MYERS & Co. |
(Absent Cabell, P. and Brooke, J.)
1. Where a contract is made for the purchase of an article hereafter to be delivered and paid for, so long as any act remains to be done by the vendor in order to put it in a state of readiness for delivery, or the amount of the purchase money remains yet to be ascertained, by the enumeration, measurement or weighing of the article, the general rule is, that the property does not pass to the buyer, but remains at the risk of the seller.
2. D contracts to buy from M all the tobacco stems M shall make during the year, at a certain price per hundred and for storage. It is the right of M to weigh and mark the stems directly they are prized, and then to require payment; but for the convenience of D the stems are not weighed or marked until D is ready to take them away, but D is charged the storage. During the year the factory of M is burned, and in it is burned fifty hogsheads of these stems, which had not been weighed or marked, though they had been put aside for D. HELD: The property in the stems had not passed to D, and they remained at the risk of M.
This was a proceeding by foreign attachment instituted in March 1833, in the Circuit court of law and chancery for the county of Henrico and City of Richmond, by Samuel S. Myers & Co., against Thomas Dixon, an absent defendant, and John and Samuel Cosby. The pleadings and proofs make out the following case:
Samuel S. Myers & Co. were manufacturers of tobacco in the City of Richmond; and in the beginning of the year 1832, they made a contract with Thomas Dixon of the City of Boston, through his agent Charles Palmer, a commission merchant in the City of Richmond, by which they agreed to sell to Palmer for Dixon all the stems they should prize during that year, at 1 dollar 75 cents per 100 pounds, and 75 cents per hogshead storage they reserving the right to send to their father in Baltimore fifteen or twenty hogsheads. Myers & Co. proceeded from time to time, as the stems were on hand, and the weather was suitable, to prize the stems in hogsheads averaging about 1300 pounds net; and they stored them in a separate part of their extensive factory, until such time as it was convenient for Palmer to ship them; and when he was about to remove them, they were weighed and marked.
It appears that according to the custom in Richmond, it was the right of the manufacturer to weigh and mark the hogsheads directly they were taken from the press, and then to present the bill for payment; but for the convenience of the shipper the large mannfacturers seem not to have weighed or marked the hogsheads until he was ready to remove them; and in the mean time to consider them as on storage from the time the stems were prized.
Myers & Co. carrying on a large business, and being possessed of a large capital, seem to have permitted Palmer to consult his convenience as to the removal of the stems; and he removed them when an opportunity to ship them occurred. But reciprocating the spirit in which they dealt with him, he sometimes made advances to them on account of the stems prized, before they were weighed and marked, and therefore before they presented a bill; whilst on the other hand a bill was sometimes not presented until the stems were shipped. Both these acts were, however, a departure from what was understood to be the rule: That was, that the bill for the price of the stems and the storage might be presented at any time after the stems were prized; but the purchaser was not bound to pay until the bill was presented; and that necessarily involved the weighing and marking the hogsheads.
On the 24th of November 1832, the factory of Myers & Co., with its contents, was consumed by fire. At that time there were in the factory fifty-six hogsheads of stems, besides seventeen hogsheads which had been set aside for Mr. Myers of...
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