Miller v. Seaman

• Decision Date: 15 July 1896
• Docket Number: 76
• Citation: 35 A. 134,176 Pa. 291
• Parties: Albert G. Miller, now for use of Second National Bank of Elmira, N.Y., Appellant, v. Sidney A. Seaman and Frank P. Snyder, now or lately trading under the firm name of S.A. Seaman & Co., and Julia A. Smyth
• Court: Pennsylvania Supreme Court

35 A. 134

Albert G. Miller, now for use of Second National Bank of Elmira, N.Y., Appellant, v. Sidney A. Seaman and Frank P. Snyder, now or lately trading under the firm name of S.A. Seaman & Co., and Julia A. Smyth

176 Pa. 291

No. 76

Supreme Court of Pennsylvania

July 15, 1896

Argued March 18, 1896

Appeal, No. 76, Jan. T., 1896, by plaintiff, from judgment of C.P. Lycoming Co., Dec. T., 1894, No. 175, of nonsuit. Affirmed.

Assumpsit for lumber sold by contract. Before METZGER, P.J.

The plaintiff offered in evidence the following agreement for the sale of lumber:

"By this agreement, made this twenty-first day of February, 1894 A. G. Miller, of Elmira, N.Y., agrees to sell to S.A. Seaman & Co. and J. A. Smyth, of Williamsport, Pa., the 406,000 feet of hemlock lumber, more or less, belonging to the said A.G Miller, now piled on the yard of the Dent Lumber Company at Du Boistown, Lycoming County, Pa., being the eleven piles of lumber designated with the mark 'A.G.M.,' and numbered and mentioned in Schedule 'A' hereunto annexed, at and for the price of eight dollars and twenty-five cents per thousand, shipping count, F.O.B. cars, Williamsport, to be loaded, inspected and measured, as ordered by said purchasers, by Mr. Sam. Aurand for the sellers, the same to be paid for by said purchasers within thirty days after dates of bills to be dated on the day of loading, in cash, less a discount of two per cent; all lumber on the yard June 1, 1894, not loaded on cars before that date, to be inspected and measured, or estimated, by S. V. Van Fleet, and the same to be paid for in cash on that date at the rate of eight dollars per thousand, less said two per cent. discount, and all prior unpaid bills to be paid in cash within thirty days from their dates, as above provided. The expense of said inspection and measurement, or estimate, of lumber on yard June 1, 1894, to be borne and paid by said purchasers."

Plaintiff offered in evidence the following letter:

"WILLIAMSPORT, Pa., May 24, 1894.

"MR. A. G. MILLER, Elmira, N.Y.

"Dear Sir: Owing to the damage caused by the flood and consequent inability of the railroads to move any lumber for some days, we are compelled to ask an extension of time for the fulfillment of our contract with you, as to moving the lumber on the Dent Lumber Co.'s yard, which expires on the 1st of June. It will be utterly impossible to move it by that time owing to the causes named, and we would like an extension of time for three months.

"We shall not ask any favors on the payments, as we will take care of those as they come due, but simply an extension of the time for moving the lumber.

"At present writing it is not known how much of the lumber has been lost by the flood. Captain Byers informs us that they had three loaded cars on the track, one of which was ours; two of them were lost but ours remained on the track all right.

"Yours truly.

"S.A. SEAMAN & CO.,

"J.A. SMYTH."

This for the purpose of showing acceptance of delivery by the defendants; that the lumber was delivered to them, and that it was the intention of the parties that the title to the lumber vested in the defendants at and from the time of the agreement in this case.

Defendants objected as follows:

1. Because it is not proposed to prove that the defendants knew that the lumber in question had gone down the river by the flood of May, 1894, and the letter itself shows that the defendants were in ignorance of the lumber having been taken down by the flood in that they say we are compelled to ask an extension of the time to fulfill with you the moving of the lumber on the Dent Lumber Company's yard which expires on the 1st of June. It will be utterly impossible to move it at that time under all the causes named.

2. Because it is incompetent and irrelevant for the causes named.

By the Court: Objections sustained, evidence excluded and bill sealed for plaintiff. [1]

The facts and a statement of other testimony appear by the opinion of the Supreme Court.

The court entered a compulsory nonsuit which it subsequently refused to take off.

Errors assigned were, (1) ruling on testimony quoting the bill of exception; (2) overruling motion to take off nonsuit.

The judgment of nonsuit was properly entered. The assignments of error are overruled and the judgment is affirmed.

C. LaRue Munson, with him Addison Candor, for appellant. -- Upon a motion for nonsuit every fact and inference the jury may lawfully draw are admitted; Miller v. Bealer, 100 Pa. 583; Jones v. Bland, 116 Pa. 190; Lerch v. Bard, 153 Pa. 575. The words "agreed to sell" purport an immediate sale: Tarling v. Baxter, 6 Barn. & Cress. 360; Van Brocklen v. Smeallie, 140 N.Y. 72. The essential element showing the intention to pass the title is specification or identification of the property: Winslow v. Leonard, 24 Pa. 16; Gonser v. Smith, 115 Pa. 452; Commonwealth v. Hess, 148 Pa. 98; Hatch v. Oil Co., 100 U.S. 124; 21 Am. & Eng. Ency. of Law, 482; Coal Co. v. Harlan, 27 Pa. 430; Pratt v. Campbell, 24 Pa. 184. The court was not justified in giving the word "inspected" a technical meaning in the absence of proof: Robertson v. French, 4 East, 135; Hutchinson v. Bowker, 5 M. & W. 535; Eaton v. Smith, 20 Pick. 150; Shafer v. Sensman, 125 Pa. 310; 2 Parsons on Contracts, 493. Where goods are delivered to the buyer, the presumption is that the parties intended that the property in them should pass at once, although something may remain to be done to ascertain the amount of the price: Scott v. Wells, 6 W. & S. 357, 366; Nicholson v. Taylor, 31 Pa. 130; Andrews v. Weaver, 4 Mont. 110; 1 Benjamin on Sales (4th Am. ed.), 378; Crofoot v. Bennett, 2 N.Y. 258; Burrows v. Whitaker, 71 N.Y. 291; Macomber v. Parker, 13 Pick. 175; Shealy v. Edwards, 73 Ala. 170; Graff v. Fitch, 58 Ill. 373. The property being in possession of a third party, notice to them of the sale and direction to deliver the lumber to the vendees, communicated to and accepted by the vendees, operated as, and was, a delivery of the lumber: Keil v. Harris, 5 Cent. 865; Linton v. Butz, 7 Pa. 90; Woods v. Hull, 81* Pa. 451; Worman v. Kramer, 73 Pa. 378; Dempsey v. Gardner, 127 Mass. 381; King v. Jarman, 35 Ark. 190; Boswell v. Green, 25 N.J.L. 390.

The words in the contract referring to the inspection and measuring or estimating the lumber did not make the agreement executory nor prevent the title from vesting in the vendees: Kohl v. Lindley, 39 Ill. 195; Leonard v. Davis, 66 U.S. 476; Diehl v. McCormick, 143 Pa. 584.

B. S. Bentley and Seth T. McCormick, with them Henry C. McCormick, for appellees. -- It was intended by the contract that no title should pass to the vendees until certain things provided for by the contract had taken place, to wit: the inspecting and measuring and the loading of the lumber. In such case title does not pass until the conditions precedent are fully complied with: Scott v. Wells, 6 W. & S. 357; Dennis v. Alexander, 3 Pa. 51; Hutchinson v. Hunter, 7 Pa. 140; Golder v. Ogden, 15 Pa. 528; Lester v. McDowell, 18 Pa. 91; Winslow v. Leonard, 24 Pa. 14; Nicholson v. Taylor, 31 Pa. 128; Thompson v. Franks, 37 Pa. 329; Bigley v. Risher, 63 Pa. 152; Hutchinson v. Com., 82 Pa. 472; 1 Benjamin on Sales, 330; Elgee Cotton Cases, 22 Wallace, 180; Lingham v. Eggleston, 27 Mich. 324.

Inspection is defined by act of April 15, 1835, P.L. 415.

Before STERRETT, C.J., GREEN, McCOLLUM, MITCHELL and FELL, JJ.

OPINION

MR. JUSTICE WILLIAMS:

In the spring of 1894 a quantity of sawed hemlock lumber was swept from the yard of the Dent Lumber Company at Du Boistown, near Williamsport, by flood and lost. The object of this action is to determine whether the plaintiff or the defendants must bear the loss so occasioned, and this must depend on which of them held the title at the time the flood came. The hemlock had been sawed by the Dent Lumber Company in 1893, and at that time belonged to it. On the 8th day of November of that year, the Dent Lumber Company sold to A.G. Miller, the legal plaintiff, eleven piles of hemlock lumber for the lump sum of $3,250. The piles were estimated to contain four hundred and six thousand feet, more or less. Possession was delivered to the purchaser in the pile, and he at once caused each pile to be distinctly marked with his initials. This was a present sale by the vendor, and as...