Idaho Implement Co., Ltd. v. Lambach

• Decision Date: 10 May 1909
• Citation: 16 Idaho 497,101 P. 951
• Parties: IDAHO IMPLEMENT COMPANY, LTD., a Corporation, Respondent, v. GUS LAMBACH, Appellant
• Court: Idaho Supreme Court

101 P. 951

16 Idaho 497

IDAHO IMPLEMENT COMPANY, LTD., a Corporation, Respondent, v. GUS LAMBACH, Appellant

Supreme Court of Idaho

May 10, 1909

CONTRACTS FOR SALE OF PERSONAL PROPERTY-EXECUTED AND EXECUTORY-DELIVERY-QUESTION FOR JURY-INSTRUCTIONS OF COURT.

1. The distinction between an actual sale or a mere executory agreement to sell personal property is, that in the former the thing which is the subject of the contract becomes the property of the buyer the moment the contract is concluded and without regard to the fact whether the goods be actually delivered to the buyer or remain in the possession of the seller; while in the latter the goods remain the property of the seller till the contract is executed.

2. In determining the question as to whether the title has or has not passed by the contract, the primary and first consideration is, the intention and understanding of the parties as gathered from the contract, and the circumstances surrounding the sale.

3. If under all the evidence, different minds might honestly reach different conclusions as to whether the sale was completed or merely an executory agreement to sell, then the question is one of fact, and should be left to the jury.

4. Where the complaint alleges the sale of personal property and the payment of cash to the defendant, and the defendant denies the allegations of the complaint and files a cross-complaint alleging that the defendant sold to the plaintiff certain personal property, and that the plaintiff paid part of the purchase price in personal property and cash, and judgment is demanded for the balance of the contract price, and there is evidence tending to support the cross-complaint of the defendant, it is error for the court to instruct the jury that the defendant set up an offset for damages against the plaintiff's claim by reason of plaintiff's refusal to receive the property alleged to have been sold by the defendant to the plaintiff.

5. In such action where the evidence shows that the property sold by defendant to plaintiff was hay, that the same was segregated and set apart, and part actually delivered, and the remainder offered and tendered to the plaintiff, who neglected and failed to make provision for receiving the same, it is error for the court to instruct the jury that the title to such property sold remained in the defendant until the same was actually delivered to the plaintiff or upon its order.

6. In such transaction it is error for the court to instruct the jury that if the plaintiff, after agreeing to receive the hay, de- clined to receive the same at the time agreed upon for delivery, then in that event, in order for the defendant to recover damages, he should have established upon the trial the actual market value of such hay at the time fixed for delivery, less the contract price.

7. Held, in this case that the instructions of the court as given to the jury were erroneous, and inapplicable to the case as made by the pleadings and the evidence.

(Syllabus by the court.)

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Fremont Wood, Judge.

Judgment of the district court reversed, and a new trial ordered. Costs awarded to appellant.

An action to recover debt. Judgment for plaintiff. Defendant appeals. Reversed.

J. C Johnston, and Gustave Kroeger, for Appellant.

"When from the entire evidence different minds might honestly reach different conclusions as to the sale and acceptance of the property claimed to have been sold, the sale and acceptance are questions for the jury, and their verdict will not be disturbed." (Coffin v. Bradbury, 3 Idaho 770 95 Am. St. 37, 35 P. 715; Rapple v. Hughes, 10 Idaho 338, 77 P. 722; O'Farrell v. McClure, 5 Kan. App. 880, 47 P. 160.)

What was the intention of the parties is a question for the jury, to be determined under proper instructions from the court. (24 Am. & Eng. Enc. Law, 2d ed., 1047, 1048; Hatch v. Standard Oil Co., 100 U.S. 131, 25 L.Ed. 554; Hathaway v. East Tenn. R. Co., 29 F. 489; McClung v. Kelley, 21 Iowa 508; Caywood v. Timmons, 31 Kan. 394, 2 P. 566; Dyer v. Libby, 61 Me. 45; Wigton v. Bowley, 130 Mass. 254; Blodgett v. Hovey, 91 Mich. 571, 52 N.W. 149; Lobdell v. Horton, 71 Mich. 681, 40 N.W. 28; Glass v. Gelvin, 80 Mo. 297; Kelsea v. Haines, 41 N.H. 253; Kent Iron etc. Co. v. Norbeck, 150 Pa. 559, 24 A. 737; Hood v. Bloch, 29 W.Va. 244, 11 S.E. 910.)

The court below took the whole case from the jury, and instructed the jury that there was no sale, and that the property and the whole thereof remained the property of the defendant, and wholly at his risk. This was certainly error. (Holley v. St. Louis R. S. & Cole Ry. Co., 34 Mo.App. 202; Wabash, St. L. & P. Ry. Co. v. Shryock, 9 Ill.App. 323; Graff v. Finch, 58 Ill. 379, 11 Am. Rep. 85; Prowers v. Nowles, 42 Colo. 442, 94 P. 347.)

Delivery under a contract of sale is not necessary to pass the title to personal property, as between the parties. (Webster v. Granger, 78 Ill. 230; Newcomb v. Cabell, 73 Ky. (10 Bush) 460; Kling v. Fries, 33 Mich. 275; Frazier v. Fredericks, 24 N.J.L. 162; Olyphant v. Baker, 5 Denio, 379; Hooben v. Bidwell, 16 Ohio 509, 47 Am. Dec. 386; 43 Cent. Dig. 727; 24 Am. & Eng. Enc. Law, 2d ed., 1068; Benjamin on Sales, 6th Am. ed., secs. 674, 675.)

"If the seller has done all that is required of him, and the buyer, through neglect and carelessness, allows the goods to remain in the seller's hands, the seller is absolved from all liability for injury resulting therefrom." (Wood v. Tassell, 6 Q. B. 234, 51 Eng. Com. L. 234; 24 Am. & Eng. Enc. Law, 2d ed., 1051; Sweeney v. Owsley, 53 Ky. (14 B. Mon.) 413.)

Where the buyer of merchandise refused to accept the delivery, the seller wishing to affirm the sale, and recover the price, must show that he tendered the delivery of the chattels at the time and place stipulated in the agreement. (Benton v. Bidault, 6 La. Ann. 30; McIntyre v. Kline, 30 Miss. 361, 64 Am. Dec. 163; Hunter v. Wetsell, 84 N.Y. 549, 38 Am. Rep. 544; Mackie v. Egan, 6 Misc. 95, 26 N.Y.S. 13.) A seller of personal property may, upon the purchaser's wrongfully refusing to receive it on due tender thereof, set it aside for the purchaser, and maintain an action for the full purchase price. (Crown Vinegar & Spice Co. v. Wehrs, 59 Mo.App. 493.)

H. S. Kessler, for Respondent.

"When the agreement for sale is of a thing not specified, as of an article to manufacture or of a certain quantity of goods in general, without a specific identification of them or an 'appropriation' of them to the contract, as it is technically termed, the contract is an executory agreement and the property does not pass." (Benjamin on Sales, sec. 462; Mechem on Sales, secs. 721, 723; 21 Am. & Eng. Enc. of Law, 1054; McLaughlin v. Piatti, 27 Cal. 451; Caruthers v. McGarvey, 41 Cal. 16.)

"When the vendor has not transferred to the buyer the property in the goods which are the subject of the contract, . . . as where the agreement is for the sale of goods not specific, or of specific goods which are not in a deliverable state, or which are to be weighed or measured before delivery, his only action against the buyer is for damages for nonacceptance." (Benjamin on Sales, sec. 1117; Mechem on Sales, sec. 1689.)

The only possible question for consideration, and which will determine, whether or not the instructions of the court were correct, is the question of whether or not there was a subsequent appropriation that would pass the title to the hay. (Benjamin on Sales, secs. 488, 489; Mechem on Sales, sec. 729.)

STEWART, J. Sullivan, C. J., and Ailshie, J., concur.

OPINION

STEWART, J.

The respondent sued appellant to recover the sum of $ 77.17.

In the complaint the respondent alleged:

"2. That the plaintiff at Boise, Idaho, between the 17th day of December, A. D. 1904, and the 30th day of April, 1905, at defendant's request, sold and delivered to defendant, goods, wares and merchandise and advanced and paid to defendant money, all of the total amount and agreed value of one hundred and eleven and 25/100 dollars; that defendant has not paid said last-named amount, or any part or portion thereof, except the sum of thirty-four and 08/100 dollars; that there is now due and owing from defendant to plaintiff as a balance due on said sum of $ 111.25, the sum of seventy-seven and 17/100 dollars, no part or portion of which has been paid."

The defendant answered and denied specifically each of the allegations of the complaint and filed a cross-complaint against the plaintiff, in which in substance it was alleged that the defendant sold to the plaintiff and the plaintiff bought a carload of twelve tons of baled hay at $ 11 per ton, then ready for immediate delivery and situated in a shed on defendant's ranch in Ada county, Idaho; that at the time of the making of said contract the plaintiff paid down upon the purchase price of said hay one pair of second-hand weighing scales valued at the sum of $ 60, and that the scales were delivered to the defendant and by him accepted as part payment.

The cross-complaint then alleges that the defendant was to deliver the hay at the town of Perkins to be put on board of a car to be furnished by the plaintiff; that the plaintiff failed and neglected to furnish the car, and requested the defendant to haul the hay to Boise for delivery and the defendant agreed to the same and hauled to Boise four loads of the hay; that at the time the hay was sold it was situated in a shed upon the defendant's ranch, in which the defendant kept his own hay, and at the time of such sale and before any of the hay was hauled, the same was set aside as the hay and property of the plaintiff and by it accepted, and the plaintiff paid to the defendant in...