New England Dressed Meat & Wool Co. v. Standard Worsted Co.

• Decision Date: 28 February 1896
• Citation: 43 N.E. 112,165 Mass. 328
• Parties: NEW ENGLAND DRESSED MEAT & WOOL CO. v. STANDARD WORSTED CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

165 Mass. 328

43 N.E. 112

NEW ENGLAND DRESSED MEAT & WOOL CO. v. STANDARD WORSTED CO.

Supreme Judicial Court of Massachusetts, Suffolk.

February 28, 1896

COUNSEL

CO 43 N.E. 112(1896)] Asa

French and Asa P. French, for plaintiff.

George R. Swasey and Julius Nelson, for defendant.

OPINION

KNOWLTON J.

The plaintiff seeks to recover only upon the first and third counts of the amended declaration, which set forth a claim for the price of goods sold. As the case was submitted to the jury, a verdict could not be rendered for the plaintiff unless it was proved that the title passed to the defendant. The contract of sale covered certain specific property namely, the fine combed wool which the plaintiff had on hand when the contract was made, and also such fine combed wool as the plaintiff should manufacture within the next 30 days; the whole to be paid for at 40 cents per pound. The present action concerns only a part of the wool subsequently manufactured, and the principal question in the case is whether the title passed before the action was brought. What was necessary to give the contract effect upon the wool to be produced so as to change the ownership from the plaintiff to the defendant? The plaintiff was a manufacturer of wool, and it is clear that of the quantity of wool of different kinds in its possession none would pass to the defendant until something occurred to designate it as that covered by the contract. The parties contemplated, as their contract shows, that the plaintiff who was to manufacture the wool, should, in connection with the work of manufacturing it, separate it from the mass of wool then in its possession, and determine its weight, so that it would appear to be the property called for by the contract; and its price would be ascertained. A learned writer states the law to be as follows: "In a sale of a portion of a larger mass, the whole remaining in the possession of the vendor, with a right and power in him to make a separation, both upon principle and the weight of authority no title passes until that is done, so as to enable the vendor to recover the price, even for goods 'bargained and sold.' " Benj. Sales (6th Am.Ed.) 308. This doctrine is well established in Massachusetts, and while the decisions are not uniform, it is a rule which prevails generally in this country as well as in England. Scudder v. Worster, 11 Cush. 573; Weld v. Cutler, 2 Gray, 195; Middlesex Co. v. Osgood, 4 Gray, 447; Ropes v. Lane, 9 Allen, 502; Keeler v. Goodwin, 111 Mass. 490; Morse v. Sherman, 106 Mass. 430-432; Nichols v. Morse, 100 Mass. 523; Turner v. Langdon, 112 Mass. 265; The Elgee Cotton Cases, 22 Wall. 180-187; Hatch v. Oil Co., 100 U.S. 124-134; Morrison v. Dingley, 63 Me. 553; Bailey v. Smith, 43 N.H. 141; Haldeman v. Duncan, 51 Pa.St. 66; Hahn v. Fredericks, 30 Mich. 223; Woods v. McGee, 7 Ohio, 127; Browning v. Hamilton, 42 Ala. 484; Bank v. Gillette, 90 Ind. 268; Ferguson v. Bank, 14 Bush, 555; Baldwin v. McKay, 41 Miss. 358; Upham v. Dodd, 24 Ark. 544; Courtright v. Leonard, 11 Iowa, 32; McLaughlin v. Piatti, 27 Cal. 452-463. We think that this rule is applicable to the present case. The regular process of manufacture which was necessary to bring the property within the contract would leave it a part of the larger mass in the possession of the plaintiff. According to the uncontradicted testimony, as the wool was manufactured it was conducted into bins by a spout, and in the absence of some special action, taken for the purpose, there would be nothing to distinguish the wool made on one day from that made on the next day. The defendant requested the judge to instruct the jury as follows: "In order to recover on either the first, second, or third counts of its amended declaration the plaintiff must prove exactly 5,014 pounds of F.C. wool was separated into a body by itself, not mixed with or a part of any greater quantity of wool of a different grade, or with a greater quantity of F.C. wool, at the time the defendant was entitled to receive the wool the subject of the contract. In other words, the plaintiff, under the first three counts of CO 43 N.E. 112(1896)] the amended declaration, must show that the title to 5,014 pounds of F.C. wool passed to the defendant, and the title could not so pass until and unless that exact quantity of F.C. wool was made a distinct and separate portion by itself." The judge adopted this instruction, and said he would give it, omitting the words "exactly" and "exact." The instruction was not given in the words in which it was written, and the defendant contends that, considering the whole charge together, it was not given in substance or according to its meaning. We do not deem it necessary to determine the correctness of this contention. The defendant concedes that some parts of the charge correctly stated its position. The fair interpretation of the request is "that the wool subject to the contract"--that is, the identical wool manufactured during the 30 days--must have been separated from the other wool of the plaintiff, so that it could be identified, in order to entitle the plaintiff to recover. We think the presiding justice intended to present to the jury the question raised by this request, and we also think that there was no evidence in the case to warrant a finding for the plaintiff upon it. As we understand the testimony, which is reported in full in the bill of exceptions, the plaintiff, in manufacturing the wool, weighed it as it went into the bins, so that the weight of the product of each day was known. The wool produced within the 30 days was weighed in the ordinary course of manufacture, and in that way the plaintiff knows how many pounds are covered by the contract. When the plaintiff undertook to deliver or to set apart for the defendant the balance of the wool covered by the contract remaining after the previous delivery, it shipped 6,223 pounds instead of 5,014 pounds, the balance of the amount which was produced within the 30 days. The defendant was not bound to take any wool except that manufactured within the 30 days, and, unless the plaintiff, whose duty it was to separate that from its other property, separated it so that it could be identified, the title to it never passed. We find no statement from any witness indicating that it was so separated. Apparently nothing was done under the contract to determine what wool belonged to the defendant. Taking the weights as the wool was manufactured did not enable the plaintiff to determine what portion of the contents of the bins was made at one time and what at another. The first request of the defendant was for a ruling that on the evidence the plaintiff could not recover on the first, second, or third count of its amended declaration. We think the jury were erroneously permitted to find for the plaintiff.

As additional facts may be presented at another trial, it becomes necessary to consider other questions in the case. The defendant contended that there was no sufficient memorandum of the contract as required by the statute of frauds. It is immaterial that the...