Idaho Products Co. v. Bales

• Decision Date: 29 March 1923
• Citation: 214 P. 206,36 Idaho 800
• Parties: THE IDAHO PRODUCTS COMPANY, a Corporation, Appellant, v. FRANK P. BALES, Respondent
• Court: Idaho Supreme Court

214 P. 206

36 Idaho 800

THE IDAHO PRODUCTS COMPANY, a Corporation, Appellant, v. FRANK P. BALES, Respondent

Supreme Court of Idaho

March 29, 1923

CONTRACT OF SALE-QUESTION AS TO WHETHER CONTRACT EXECUTED OR EXECUTORY - CONFLICT BETWEEN PRINTING AND WRITING - PASSING OF TITLE-INTENTION OF PARTIES-STATUTORY CONSTRUCTION.

1. In a contract for the sale of goods which is free from ambiguity the question as to whether the title to the goods passed from vendor to vendee at the time agreement was signed depends upon the intention of the parties, which intention is to be determined from the terms of the contract itself, the conduct of the parties and circumstances of the case.

2. Where a contract is partly printed and partly written, as in the use of printed forms, and there is a conflict between the printing and the writing, the writing will prevail. (C. S sec. 5669.)

3. A test as to whether a contract of sale is executed or executory may be applied by considering at whose risk the subject matter of the contract remains prior to actual delivery to the buyer. A clause in the contract obligating the seller to insure the goods at his own expense up to the time of shipment indicates that the parties intended something still to be done before title passed, and that the contract accordingly was executory.

4. Where the terms of an agreement of sale are undisputed and the attendant circumstances agreed upon, the question of the intent of the parties as regards the passing of title is ordinarily a question of law for the court.

5. Where the specific goods described in a contract of sale are in a deliverable condition, but there still remains some act to be done, like weighing, measuring or testing, where the price is to depend upon the quantity or quality of the goods the title ordi- narily will not pass, in the absence of evidence of an intention to the contrary, until such act is done.

6. C S., secs. 5691 and 5748, substantiating the general law, referring to contracts to sell specific goods in a deliverable state, must be construed together, and under a contract for the sale of "strictly Number One merchantable hay," until hay of that grade was segregated it was not in a deliverable state within the meaning of the statute.

7. The question of the reasonableness of the time given to a buyer of hay under a contract of sale, within which to remove the hay and pay for the same under his option to purchase, is a question of fact for the jury.

APPEAL from the District Court of the Seventh Judicial District, for Canyon Conuty. Hon. Ed. L. Bryan, Judge.

Action in conversion. Judgment for defendant. Affirmed.

Judgment affirmed. Costs awarded to respondent.

Johnson & Nixon and W. C. Bicknell, for Appellant.

Under the agreement of sale, the title to the hay passed to plaintiff. This was a question of law for the court. (Miller Co. v. Butterfield Co., 32 Idaho 265, 181 P. 703; Olin Co. v. Lambach, 35 Idaho 767, 209 P. 277; Lassing v. James, 107 Cal. 348, 40 P. 534; Yick Sung v. Herman, 2 Cal.App. 633, 83 P. 1089; C. S. 5691.)

Buckner & Warren, for Respondent.

Where anything remains to be done by either party to the transaction before delivery--as, for example, to determine the price, quality, quantity or identity of the thing sold--the title does not vest in the buyer, but the contract is merely executory; and if anything remains to be done by the seller which is material or important before the buyer can identify or possess the thing sold, or before it becomes deliverable, the sale is executory and incomplete and the property does not pass absolutely to the buyer. (Portland Seed Co. v. Clark, 35 Idaho 44, 204 P. 146; Clinton Sheep Co. v. Ogee, 34 Idaho 22, 198 P. 675; Brown v. Herrick, 34 Idaho 171, 200 P. 117; Miller Milling Co. v. Butterfield-Elder Implement Co., Ltd., 32 Idaho 265, 181 P. 703; Idaho Implement Co. v. Lambach, 16 Idaho 497, 101 P. 951; Lauber v. Johnston, 54 Wash. 59, 102 P. 873; note to Barber v. Andrews, 29 R. I. 51, 69 A. 1, 26 L. R. A., N. S., 1; 24 R. C. L. 279-282, pp. 18-22; Elgee Cotton Cases, 22 Wall. (U.S.) 180, 22 L.Ed. 863; 35 Cyc. 283-288, note 56.)

The contract is executory and no title passes where the hay is to be separated from a larger bulk to obtain a specified grade, until the hay is separated from the mass and specifically appropriated and identified as the particular subject of the sale. (Olin Co. v. Lambach, 35 Idaho 767, 209 P. 277; Clinton Sheep Co. v. Ogee, supra; 26 L. R. A., N. S., 57, and note; Idaho Implement Co. v. Lambach, supra; Lauber v. Johnston, 54 Wash. 59, 102 P. 873; 35 Cyc. 291, 292, and note 42.)

If the contract is ambiguous, the question as to whether the sale was complete or the contract merely executory under the evidence is then a matter for the jury. Such a question is one of the intention of the parties. (Clinton Sheep Co. v. Ogee, supra; Idaho Implement Co. v. Lambach, supra; Miller Milling Co. v. Butterfield-Elder Implement Co., supra.)

"Where the buyer has been in default in the payment of the price an unreasonable time, an unpaid seller having the right of lien or having stopped the goods in transitu may resell the goods." (C. S., sec. 5732; note to White Walnut Co. v. Crescent Coal Co., 254 Ill. 368, 98 N.E. 669, 42 L. R. A., N. S., 677; 24 R. C. L., secs. 376-378, incl., pp. 109-111.)

Where the sale is of unidentified property which is later to be produced and put in a deliverable state, no title passes until delivery and acceptance, and the completion or production of the article itself has no operative effect to transfer the title to the buyer, but there must be an acceptance or approval of the article by him, unless a contrary intention on the part of the parties is apparent. (Portland Seed Co. v. Tom Clark, supra; Clarkson v. Stevens, 106 U.S. 105, 1 S.Ct. 200, 27 L.Ed. 139; note, 50 L. R. A., N. S., 122; note to King v. Marman, 35 Ark. 190, 37 Am. Rep. 16; 24 R. C. L. 33-35; 35 Cyc. 288, and note 1.)

BUDGE, C. J. Dunn and Wm. E. Lee, JJ., concur.

OPINION

BUDGE, C. J.

This action was brought to recover damages for the conversion of certain hay. Appellant, on October 15, 1919, entered into a contract with J. W. Watson, which is as follows:

"Original. No. 505.

"AGREEMENT FOR THE SALE OF HAY CROP.

"This Agreement, made and entered into this 15 day of October, 1919, by and between J. W. Watson of Greenleaf, State of Idaho, party of the first part, hereinafter referred to as the Grower, and the Idaho Products Company, a corporation, with its principal place of business at Boise, Idaho, party of the second part, hereinafter referred to as the Buyer, Witnesseth:

"That the Grower has this day sold to the Buyer all of his strictly Number One, merchantable Alfalfa Hay, consisting of approximately 200 tons, now in stack or growing on that certain premises described as Old Conner Ranch and of which hay the Grower has the sole ownership and control; it being expressly understood and agreed that the Grower is to harvest and stack the said hay at the proper time and in the proper manner, and that the said hay is to be delivered to the Buyer in stack on the said premises, or to the baler on the said premises, as the Buyer may direct. It is also understood and agreed that the said Buyer is to be given the full privilege and such time as it may desire for the baling and removal of said hay from the stack or stacks and from the said premises.

"The Buyer hereby agrees to make payment to the said Grower for all hay purchased in accordance with this agreement at the rate of Fourteen 00/100 Dollars ($ 14.00) F. O. B. ranch, per ton of 2000 lbs., under the following terms, to wit: to be paid as loaded. One hundred 00/100 Dollars ($ 100.00) at the time of the execution of this agreement as earnest money, the receipt of which is hereby acknowledged. The balance of the said purchase price less any other amounts advanced is to be paid upon the completion of loading on board cars for shipment.

"The Grower hereby agrees to insure the said hay at his expense up to and until time of shipment, and the policy of insurance shall provide that the loss, if any, shall be paid to the said Buyer as its interest may appear.

"It is further understood that the party of the first part agrees to be governed by the official standard of grades for the State of Idaho as established by the State Department of Agriculture in the grading of the said purchased hay, and in the event that the said party of the first part shall fail to produce hay of Number One grade as herein contemplated, said party of the first part agrees to accept such grading as hay will permit according to the rules of the State Department of Agriculture of Idaho as herein referred to.

"It is mutually understood and agreed that the foregoing contract expresses and contains all of the stipulations and agreements relating to the sale and purchase of said hay and that no verbal representations made by any agent or representative of said Buyer shall in any manner affect the said agreement.

"IN WITNESS WHEREOF, The said Grower has hereunto set his hand and seal in triplicate and said Buyer has caused its corporate name to be hereunto subscribed by its duly authorized agent the day and year of this agreement as above written.

"J. W. WATSON, (Seal)

"Grower.

"IDAHO PRODUCTS COMPANY,

"By C. HARDIES,

"Its Agent."

From the record it appears that one Percy Trunnell had an interest in the hay and that on December 8, 1919, he wrote appellant and ratified the contract entered into between Watson and appellant. On December 16, 1919, appellant entered into a contract with Sanford Evans & Company to furnish 200 tons of hay at $ 28 per ton to be shipped from Caldwell, Idaho. Appellant claimed damages...