E. L. Welch Co. v. Lahart Elevator Co.
| Decision Date | 10 December 1909 |
| Docket Number | 15,950 - (4) |
| Citation | 123 N.W. 821,109 Minn. 219 |
| Parties | E. L. WELCH COMPANY v. LAHART ELEVATOR COMPANY |
| Court | Minnesota Supreme Court |
Action in the district court for Hennepin county to recover $5,339.45, the value of certain wheat, which it was alleged plaintiff owned on May 13, 1907, and defendant then converted. The answer was a general denial. The facts are stated in the opinion. At the close of the testimony defendant moved for a directed verdict on the ground that the wheat belonged to defendant on May 13, 1907, and had belonged to it ever since April 23 or April 24, 1907. The court Simpson, J., granted the motion and directed the jury to return a verdict in favor of defendant. From an order denying plaintiff's motion for a new trial, it appealed. Reversed and new trial granted.
Sale of Grain for Future Delivery -- Passing of Title.
In the ordinary course of business pursuant to a sale on the floor of the Minneapolis board of trade of grain for future delivery, after inspection, the seller notifies the buyer of the application to the sale of the grain in the cars on the tracks in the yards at Minneapolis, and, the elevator having been designated by the buyer, the seller gives switching orders to have the cars sent over the proper transfer tracks to the elevator, the wheat is there unloaded and weighed, and a bill of the amount due sent to the buyer, who is required to pay the cash. Held, it is a question of fact whether the parties to such a transaction intend that the title shall not pass until payment is made, or passes at the time of giving the notices of application. In this case it does not conclusively appear from the evidence that title was transferred by giving the notices of application.
Harris Richardson and Harold C. Kerr, for appellant.
Title could not pass till the wheat was ascertained and inspected. Martin v. Hurlburt, 9 Minn. 132 (142); Fishback v. G. W. Van Dusen & Co., 33 Minn. 111, 122; Thompson v. Libby, 35 Minn. 443; State v. Meehan, 92 Minn. 283; Schreiber v. Butler, 84 Ind. 576, 583; Gardner v. Lane, 12 Allen, 39; Blanchard v. Low, 164 Mass. 118; Robinson v. Stricklin, 73 Neb. 242; LaVie v. Crosby, 43 Ore. 612; Barber v. Andrews (R.I.) 69 A. 1. It is evident that all the parties contemplated weighing before payment. Title would not pass till payment. Appellant was to pay for the weighing, that is, it was to have it done. Consequently title did not pass prior to weighing. Restad v. Engemoen, 65 Minn. 148; Welter v. Hill, 65 Minn. 273; The Elgee Cotton Cases, 22 Wall. 180; Lingham v. Eggleston, 27 Mich. 324; Byles v. Colier, 54 Mich. 1; Hays v. Pittsburgh G. & B. Packet Co., 33 F. 552; Mobile v. Fry, 69 Ala. 348; Frost v. Woodruff, 54 Ill. 155; Commercial v. Gillette, 90 Ind. 268; McClung v. Kelley, 21 Iowa 508; Jennings v. Flanagan, 5 Dana, 217; Gibson v. Ray (Ky.) 89 S.W. 474; Tingle v. Kelly (Ky.) 92 S.W. 303.
Payment of price and delivery were concurrent conditions. Lehman v. Warren, 53 Ala. 535; Adair v. Stovall, 148 Ala. 465; Stone v. Perry, 60 Me. 48; George W. Merrill Furniture Co. v. Hill, 87 Me. 17; Scudder v. Bradbury, 106 Mass. 422; Haskins v. Warren, 115 Mass. 514; Hirsch v. Leatherbee, 69 N.J.L. 509; Catlin v. Jones, 48 Ore. 158; Palmer v. Hand, 13 Johns. 434; Morris v. Rexford, 18 N.Y. 552. The fact that the bills of lading were not turned over seems to be sufficient evidence that title was not to pass till payment was made. Security Bank v. Luttgen, 29 Minn. 363; Freeman v. Kraemer, 63 Minn. 242; Bank v. Cummings, 89 Tenn. 609; Newcomb v. Boston, 115 Mass. 230; McArthur v. Old Second Nat. Bank, 122 Mich. 223; Commercial v. Chicago, 160 Ill. 401; Walters v. Western & A.R. Co., 63 F. 391; National Bank of Commerce v. Merchants Nat. Bank, 91 U.S. 92. When nothing is said, a sale for cash on delivery is presumed. Fishback v. G.W. Van Dusen & Co., 33 Minn. 111. Delivery of possession and delivery of title are two different things. National Bank v. Chicago, B. & N.R. Co., 44 Minn. 224, 228; Freeman v. Kraemer, supra; Ward v. Shaw, 7 Wend. 404. A seller for cash may reclaim for nondelivery. Globe Milling Co. v. Minneapolis Ele. Co., 44 Minn. 153, 158.
Lancaster & McGee and F. M. Miner, for respondent.
The due course of business, as carried on by and between the members of the chamber of commerce, to which these persons belonged, was fully gone into and established by the evidence. From these written documents, and the acts done in the due course of business by these persons, only one inference could be drawn. No further proof could be adduced as to intent, unless appellant had been permitted to declare the secret intent in mind when the physical acts testified to were performed. But no case has been found sustaining such declarations, and it is believed none exists, for to so hold would be against reason and common sense. They would amount to no more than self-serving declarations, contradicting conclusions of law which would flow from otherwise undisputed facts, and such declarations the law forbids. Witte v. Reilly, 11 N.D. 203, is squarely in point upon this proposition. The case was reversed upon that very ground.
There are other considerations arising out of the circumstances in evidence which are very persuasive and of strong probative force in determining the question of intent involved here, if it were otherwise doubtful. They are these: Each of the persons involved in these transactions was the owner of a membership, and in good standing as members of the chamber of commerce of the city of Minneapolis. This is a body of persons organized and maintained for the express purpose of buying and selling grain for gain. That fact of itself would necessarily give to each member confidence in all the other members, and all the other members would have, for the same reason, a feeling of confidence in each one, whereby such members would repose in each other confidence not reposed in outsiders. It is these attributes which naturally and necessarily produced the custom as to the ordinary and usual manner of doing business between members, as testified to upon this record.
This explains why title to identical quantities of wheat was constantly passing from one member to another so that a half dozen changes in such title might take place before the first vendor had presented a bill to and received payment from his vendee. A little reflection must convince the mind that without this condition and method, trading among the members of this chamber of commerce and other similar concerns must cease. It is like all business. It rests essentially upon the confidence which the members repose in each other. With this element of confidence gone, this system of trading as carried on, within this chamber, must cease because men would not take the risks that must necessarily follow as the result of a system such as the counsel for appellant contend for in this lawsuit.
This action was brought to recover the value of 5,334 bushels of wheat, which appellant claimed was converted by respondent. On February 6, 1907, appellant and one W. B. Mohler, both members of the board of trade of the chamber of commerce of Minneapolis, entered into a transaction on the floor of the board of trade by which appellant, through its secretary, Mr. McClatchie, agreed to sell to Mohler five thousand bushels No. 1 Northern wheat at 83 3/4 cents per bushel, to arrive at Minneapolis at any time before June 1. The transaction occurred in the ordinary course of business, and at the close of the day appellant sent Mohler the following letter:
On April 17 two cars of wheat were shipped to appellant at Minneapolis by the Mapes Farmers' Elevator Company, and a bill of lading was issued by the Great Northern Railway Company on that day to appellant as consignee. A similar shipment was made on April 19. The first two cars were inspected by the state grain inspector on April 22 and the next two on April 23, and certificates of inspection accordingly issued. Samples of the wheat and notations of inspection were placed for exhibition on the floor of the board, and Mohler signified his acceptance of the wheat, and thereupon, April 22, appellant sent Mr. Mohler the following notice:
83 3-4
L. Do.
The capital letter "L" indicated that the wheat was to go to respondent's elevator. On April 23 a similar notice was sent with respect to two cars, Nos. 14,072 and 29,592, which arrived in Minneapolis on April 22 and 23, respectively, the bills of lading for which were held by appellant, and the freight paid by it.
On April 13, 1907, Mohler sold to respondent, on the floor of the board of trade, ten thousand bushels of cash wheat, to arrive, and confirmed the sale as follows:
On the twelfth of May one of the four cars, No. 14072, arrived at respondent's elevator and the grain was unloaded, and on the same day weighed by...
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