Morgan v. King

• Decision Date: 27 March 1886
• Citation: 28 W.Va. 1
• Parties: Morgan v. King.
• Court: West Virginia Supreme Court

28 W.Va. 1

Morgan v. King.

Supreme Court of West Virginia, Charleston

March 27, 1886

Submitted January 18, 1886.

1. The question, whether a sale of personal property is complete or only executory, is to be determined from the intent of the parties as gathered from the contract, the situation of the thing sold and the circumstances surrounding the sale. (p 14.)

2. Where the goods sold are sufficiently designated, so that no question can arise as to the thing intended, it is not absolutely necessary, that there should be a delivery, or that the goods should be in a deliverable condition, or that the quantity or quality, where the price depends on either or both, should be determined; these are circumstances indicating intent but are not conclusive. (p. 14.)

3. But where anything is to be done by the vendor or by the mutual concurrence of both parties for the purpose of ascertaining the price of the goods, as by weighing, testing or measuring them, where the price is to depend on the quantity or quality of the goods, the performance of these things in the absence of anything indicating a contrary intent is to be deemed presumptively a condition precedent to the transfer of the property, although the individual goods may be ascertained and may be in such a state, that they may and ought to be accepted. (p. 14.)

4. Where the contract, the situation of the thing sold and the circumstances surrounding the case are such as to justify a jury in finding, that the sale was complete, and that title to the property passed to the buyer, the trial-court ought not and a fortiori the Appellate Court will not set aside such a verdict. (p. 15.)

5. K sold M. all the merchantable lumber, which he had at certain designated places, at $10.00 per thousand. Nothing was said about examining and measuring the lumber; but a short time thereafter M. spent one day with some hands hired by him in sticking a part of the lumber, when he went home and remained there sick, until a flood in the Ohio river swept away the lumber. M. had sold K. the land from which the timber, out of which the lumber was sawed, was cut, and K. owed M. $1,200,00 on said land, for which M. brought his action and sued out an attachment and levied on the lumber and then bought the lumber and agreed to take the $1,200.00 out and account to K for the balance. In his affidavit for the attachment M stated that K. had no property except the lumber. The jury found a verdict for the defendant and assessed his damages at $831,09; and the trial-court entered judgment thereon. HELD:

Under these circumstances this Court will not reverse the judgment and set aside the verdict on the ground that it was not justified by the evidence. (p. 15.)

6. In such an action the attachment-papers are admissible in evidence. (p. 15.)

7. Where it appears, that the jury assessed more than $100.00 in excess of what the evidence, which is all certified, warrants, the judgment will be reversed with costs, and the verdict set aside, and a new trial granted. (p. 16.)

Simms & Enslow for plaintiff in error.

T. L. Michie for defendant in error.

JOHNSON, PRESIDENT:

This is a naction of assumpsit brought by Morgan against King in the circuit court of Cabell county to recover the amount of two promissory notes, one for $1,000.00 and the other for $560.00. The defendant pleaded non assumpsit and filed with his plea the following offsets: [Please see hardcopy for image]

There was a demurrer to the plaintiff's declaration, which was overruled. The case was tried before a jury, and on December 19, 1884, the jury rendered a verdict for the defendant and assessed his damages at $831.09. The plaintiff moved to set aside the verdict and to grant him a new trial, on the ground that the verdict was contrary to the law and the evidence. The court overruled the motion and entered judgment for the defendant for $831.09, the amount found by the jury, with interest from the date of the judgment and for costs. The plaintiff asked the court to certify the evidence, which it did. In the bill of exceptions the plaintiff excepts to the refusal to set aside the verdict and to the overruling of his motion for a new trial. The plaintiff offered in evidence his two notes with the indorsements of credits thereon and then rested.

The defendant then proved, "that, a short time after this suit was brought, the plaintiff and defendant met in Huntington in the early part of December, 1883, and after some talk in regard to matters existing between them the defendant offered to sell the plaintiff all the lumber the defendant had at Jenkins's landing on the Ohio river in Cabell county, W. Va., at Weather's landing, one mille below the other landing, at defendant's mill one mile back of Weather's landing, in said county, and at Cochran's lumber yard in Huntington, fifteen miles below Weather's landing, at $10.00 per thousand feet; and the plaintiff agreed to take all of said lumber at the price offered that was merchantable." The balance due on his note was to be paid. Nothing was ever said about the measurement of the lumber, the quantity of which was unknown. The plaintiff and defendant met at Weather's landing several days after the foregoing contract was made, at

which place about 75,000 feet of the lumber was scattered about in small piles where it had been hauled and thrown from the wagon. The plaintiff ordered the lumber at this place to be stuck up in piles of each kind of lumber to itself, and the defendant hired hands for the plaintiff to stick up the lumber at that place as directed by the plaintiff. The plaintiff remained at that place one day directing the sticking and piling of the lumber, and then went home and was taken sick and remained sick and confined to his bed until after the flood in the Ohio river in February, 1884.

The defendant then introduced in evidence the order of attachment issued in the case with the clerk's indorsement thereon, and the levy on a large portion of the lumber mentioned in defendant's sets-off, also the affidavit of the plaintiff Morgan, on which the attachment was based, in which he claims, that the defendant owes him at least $1,200.00, and that he had sold him land for the notes he had taken from him, and that it was agreed that Morgan "should retain pos session and title to the timber, which defendant might cut from said land," and also to the lumber made thereon, and whatever money the defendant might receive from the sale of the said timber or lumber should be paid over to the said John M. Morgan on his claims against said defendant. The defendant, Thos. A. King, was to haul the lumber made from said timber to the river-bank in order to make sale of the same for the purpose of paying off said bonds." The affidavit further states that "the defendant has in his own name no property or real estate in this State known to the plaintiff except a lot of lumber, the principal part of which, if not all, was cut from the timber from the land of the plaintiff, and is now seeking to sell and dispose of the said lumber. The attachment-bond was also offered in evidence. To the admission of these attachment-papers and each of them the plaintiff objected, which objections were overruled, and the papers were' read to the jury; and the plaintiff excepted.

The lumber contracted to be sold as set out above was cut and sawed off of a tract of land sold by plaintiff to defendant, as set out in said attachment-affidavit, and was hauled by the defendant and placed at the landings aforesaid, which was not the land sold by plaintiff to defendant. The defendant

cut and sawed from the tract sold by plaintiff to defendant about 500,000 feet, all of which had been sold by said defendant, except what remained at the time of the contract with plaintiff. Some time in February, 1884, the flood in the Ohio swept all the lumber away except the pile at the mill. About the time the river was about to carry away the lumber, the defendant without any notice to plaintiff employed men to measure the said lumber on the river-bank, none of which had until then been measured. There was found to be at Weather's landing 95,477 feet and at Jenkins's landing 31,000. The lumber at the mill was never measured until a few days before this trial, when it was found to be 29,000 feet. The lumber at Huntington was measured by defendant and another man on November 28, 1884, a few days before the contract of sale to plaintiff and found to be 28,000 feet.

The plaintiff proved, that when he left Weather's landing where the lumber was being piled, he intended to return shortly, but he was taken sick, as hereinbefore stated, and could not return, and that while sick he notified the defendant twice by messages to come down to his house and settle with him, but that defendant never came nor gave any reasons for not coming.

It is insisted that the facts in this case did not warrant the verdict; that there was no delivery of the property. The question, whether this verdict should be set aside or not, depends upon the inquiry, whether the evidence before the jury justified them in finding as they did, that there had been a delivery of the lumber. They could not find for the defendant without finding this fact. This compels us to inquire what constitutes a delivery of personal property?

In Hanson v. Meyer, 6 East 614, there was a sale of all a man's starch at a certain warehouse at so much per cwt.; and it was held, that the sale was not complete to pass the property, because the starch remained to be weighed, before the price could be ascertained.

In Wallace v. Breeds, 13 East 522 there was a sale of fifty out of ninety tons of Greenland oil, which was in casks. It was held, that the property did not pass, because according to the...