Gonser v. Smith

• Decision Date: 14 March 1887
• Docket Number: 310
• Citation: 8 A. 770,115 Pa. 452
• Parties: Gonser v. Smith
• Court: Pennsylvania Supreme Court

8 A. 770

115 Pa. 452

Gonser v. Smith

No. 310

Supreme Court of Pennsylvania

March 14, 1887

Argued February 16, 1887 [Copyrighted Material Omitted]

ERROR to the Court of Common Pleas of Lycoming county: Of January Term 1886, No. 310.

Assumpsit by Lewis S. Smith and John W. Rissel who survived Daniel Clapp, late trading under the firm name of D. Clapp & Co. against John R. Gonser. Plea non assumpsit, payment, set off, with leave.

By agreement of the parties, trial by jury was waived, and the case was referred to CUMMIN, P.J., under the Act of April 22d, 1874.

The following are the findings of law and of fact by the court:

1. The plaintiffs were extensive manufacturers of lumber at Muncy, in this county, where their mill and lumber yard were located. The defendant was an extensive dealer in lumber, and resided in Kutztown, Berks county.

2. In October, 1879, the defendant came to the plaintiffs' place of business to buy lumber. One of the plaintiffs, now deceased, went with the defendant into the lumber yard, and after examination the defendant selected six or seven piles and parts of piles of different grades of lumber, at prices per thousand then agreed upon. The piles thus selected were then marked with the name of the defendant, "J. R. Gonser." The exact amount contained in the piles was not known, but for the purposes of the sale a careful estimate was made by the parties. A person was called up to witness the sale. Shortly afterwards the defendant reduced to writing his understanding of the sale, and sent the following bill of sale to the plaintiffs to be executed by them and returned to him, which was accordingly done:

MUNCY, Oct. 17th, 1879.

We hereby agree to sell and have sold to John R. Gonser, of Kutztown, Pa., and agree to deliver on board of cars at our siding all such lumber as hereinafter mentioned whenever said Gonser may order and direct to have the same loaded, within a reasonable time given for loading, all white pine lumber, being the same, or more, as mentioned as follows, to wit:

1 pile 5-4, about 20,000 feet, called shop, at $20.50

$410.00

1 pile 6-4, about 15,000 feet, called shop, at $20.50

307.50

1 1/4 pile 4-4, about 20,000 feet, called barn, at $14

280.00

1 1/2 pile 4-4, about 30,000 feet, called culls, at $11

330.00

The whole amounting to about

$1,327.50

more or less, whatever it may be, to be paid by note, dated November 5th, five months after date, due on 1st of April, 1880, for which we hereby acknowledge receipt of said John R. Gonser's note, as above stated, for thirteen hundred dollars; also ten dollars in cash, as part payment on above balance, whatever it may be, to be settled likewise as soon as the correct amount can be arrived at.

(Signed) D. CLAPP & CO.

3. In December, 1879, the defendant again came to the plaintiffs' place of business to buy more lumber. Terms of sale were agreed upon at the office in the evening, and the next day the defendant and one of the plaintiffs went on the yard, and, after careful inspection and examination, the defendant selected the piles of lumber he wanted. The piles so selected were then marked "J. R. Gonser." The exact amount contained in the piles was not known, but for the purposes of the sale a careful estimate was made by the parties. Some time afterwards, the defendant reduced to writing his understanding of the sale, and sent the following bill of sale to the plaintiffs, to be executed by them and returned to him, which was accordingly done:

KUTZTOWN, Jan. 6, 1880.

We hereby agree to sell and have sold to John R. Gonser, of Kutztown, Pa., and agree to deliver on board of car at our siding, all such lumber hereinafter mentioned whenever said Gonser may order and direct to have the same loaded, all white pine lumber, being the same, more or less, mentioned as follows, to wit: Four piles of 12-inch stock culls, about 100,000 feet, all that the four piles contain, whatever culls or barn that are in the piles marked may contain, at $14 per thousand feet, $1,400; also one pile 6-4 selects and better, containing about 14,000 feet, more or less, at $30, $420.00; total amounts to about $1,820.00, more or less, whatever it may be, to be paid by note, dated Jan. 5th, 1880, four months after date, due on the 5th of May, 1880, for which we hereby acknowledge receipt of his note due May 5th, 1880, for $1,000 (one thousand dollars), as part payment on the above, balance to be paid in the same way as soon as the exact amount can be arrived at, which becomes all due May 5th, 1880.

(Signed) D. CLAPP & Co.

4. Subsequently, from time to time, portions of this lumber were shipped as ordered by the defendant, and payments were made by him of the notes which he had given as part payment of the same. The defendant pointed out to another member of the firm plaintiff, and also to their employee, the piles of lumber he had bought, speaking of them as his lumber, saying, "this is my pile," "that is my pile," etc. In his letters the defendant always ordered his lumber to be shipped, and gave directions how he wanted his lumber covered to protect it from the weather. When plaintiffs sold lumber of same grade to another party, defendant refused to allow them to fill the order from his lumber, unless they would replace the quantity as he might desire. Thus the defendant from the dates of the sales exercised acts of ownership of the lumber sold.

5. April 10th, 1880, a destructive fire broke out in the plaintiffs' lumber yard, and all the lumber therein was destroyed, including what remained of the lumber sold to the defendant. Neither party had any insurance on the lumber sold.

6. The plaintiffs, alleging that the transactions were and were intended to be perfect sales on the days named in the bills of sale, and that the title to the lumber sold then rested in the defendant, now claim from him the balance of the consideration named in the bills of sale. The defendant, alleging that the transactions were and were intended to be executory agreements to sell lumber; that the lumber destroyed by fire was in the same condition as when the agreements were made; that the exact quantity of lumber sold, and the exact amount of the whole consideration to be paid, has never been ascertained and fixed, now claims that he has overpaid the plaintiffs for all the lumber he has received from them.

7. The statements of accounts submitted by the parties include other sales and shipments by the plaintiffs to the defendant. At the argument of this case, it was conceded that if plaintiffs were entitled to be paid for the lumber in question, which, as destroyed by fire, the balance due from the defendant would be $1,666.10, with interest from May 5th, 1880. And that, if plaintiffs were not entitled to be paid for the said lumber, then there would be a balance due from the plaintiffs to the defendant of $376.60, with interest from April 6th, 1880.

8. The only question in dispute in this case is which of the parties shall bear the loss of the lumber sold by the plaintiffs to the defendant, which remained on plaintiffs' lumber yard, and was destroyed by fire April 10th, 1880. This question is to be answered by ascertaining from all the evidence whose lumber it was at the time of the fire. If at that time the lumber was the property of the plaintiffs they must bear the loss. If it was the property of the defendant, he must bear the loss. The loss follows the title.

9. In Bigley v. Risher, 13 P.F.S. 155, a sale is thus defined: "Sale," said Mr. Justice WAYNE in Williamson v. Berry, 8 Howe, 544, "is a word of precise legal import in law and in equity. It means at all times a contract between parties to pass rights of property for money which the buyer pays or promises to pay to the seller for the thing bought and sold:" Huthmacher v. Harris' Admr., 2 Wright, 498; Bowen et al. v. Burk et al., 1 Harris, 148.

In Benjamin on Sales, 4 Am. Ed., Vol. 1, p. 315, the law of England on the sale of a chattel, as declared by PARK, J., in Dixon v. Yates, 5 Ad. & E., 313-340, is thus stated: "I take it to be clear that by the law of England the sale of a specific chattel passes the property in it to the vendee without delivery. . . . Where there is a sale of goods, generally, no property in them passes till delivery, because until then the very goods sold are not ascertained. But where by the contract itself the vendor appropriates to the vendee a specific chattel, and the latter thereby agrees to take that specific chattel and to pay the stipulated price, the parties are then in the same situation as they would be after a delivery of goods in pursuance of a general contract. The very appropriation of the chattel is equivalent to delivery by the vendor, and the assent of the vendee to take the specific chattel and to pay the price is equivalent to his accepting possession. The effect of the contract, therefore, is to vest the property in the bargainee." In the same volume, p. 330, the rule deducible from the American decisions is thus stated: "In the absence of an express agreement, the intent that title shall pass at once by the contract, although the seller is to deliver, is inferred where the buyer is to give notice of time and place of delivery, where payment in full is made, where the buyer employs the seller to remove the property, or where there is other evidence that the continued possession of the seller is merely for the convenience of the buyer, or that the removal of the goods is made by the seller as agent for the buyer."

10. In this state, as between vendor and vendee, I find the law to be as follows: "If any part of the price is paid down if it be but a penny, or any portion of the goods delivered, by way of earnest, the property of the goods is absolutely bound...