Newcomb, Buchanan & Co. v. Cabell, &C.
| Decision Date | 09 December 1874 |
| Parties | Newcomb, Buchanan & Co. v. Cabell, &c. Hartfield v. Cabell, &c. |
| Court | Kentucky Court of Appeals |
APPEALS FROM ADAIR CIRCUIT COURT.
MUIR, BIJUR & DAVIE, J. PROCTOR KNOTT, For Appellants Newcomb, Buchanan & Co.
J. PROCTOR KNOTT, GEORGE M. DAVIE, For Appellant Hartfield.
COPYRIGHT MATERIAL OMITTED
A. J. JAMES, R. S. MONTAGUE, W. H. CHELF, ALEXANDER & DICKINSON, For Appellees.
JUDGE PRYOR DELIVERED THE OPINION OF THE COURT.
Leopold Hartfield, the owner of a distillery in the county of Green, contracted with Dorn, Barkhouse & Co., of the city of Louisville, to sell his whisky, for which they were to receive a commission of five per cent on sales, one per cent for advances made, with the current bank rate of interest thereon, the product to be held at his (Hartfield's) price for four months, after which time Dorn, Barkhouse & Co. had the right to sell it at the usual market-price. Hartfield became largely indebted to his commission merchants for advances made, and in order to enable them to make sales, as well as for their own indemnity, forwarded to them the warehouse receipts for the whisky as it was distilled and placed in the bonded warehouse connected with his distillery, each barrel being identified by the number marked upon it, and the numbers corresponding therewith embodied in the warehouse receipts.
After the execution of this contract Hartfield made five hundred and forty-eight barrels of whisky, all of which were placed in the government or bonded warehouse, and the warehouse receipts inclosed to Dorn, Barkhouse & Co. One hundred barrels of this whisky were sold to Thierman & Prante, of Louisville, which were withdrawn by them in January, 1871, and forty-eight barrels to Chambers Bros. & Co. The sale to Chambers Bros. & Co. was made some time in the year 1870, and the following receipt or certificate delivered to them by Hartfield through his agents, Dorn, Barkhouse & Co.:
This receipt for the forty-eight barrels of whisky was first pledged by Chambers Bros. & Co. to Newcomb, Buchanan & Co. for the loan of money; but in a short time thereafter the latter purchased the whisky, and became the absolute owners so far as Chambers Bros. & Co. could confer title. This sale was made and the receipt delivered to the appellants (Newcomb, Buchanan & Co.) in December, 1870. On the 18th of January, 1871, Hartfield, in conjunction with Julius Dorn, sold to Newcomb, Buchanan & Co. all the whisky that was then unsold in the bonded or distillery warehouse of Hartfield, supposed to be about three hundred and fifty barrels. This sale embraced all the whisky except that sold to Thierman & Prante and to Chambers Bros. & Co.; and appellants, having purchased the whisky of Chambers Bros. & Co., claimed to be the owners from the 18th of January, 1871, of all the whisky except that sold to Thierman & Prante.
At the time of the purchase made on the 18th of January, 1871, only a portion of the warehouse receipts were delivered over to the appellants, and the balance were delivered on the 20th and 21st of the same month, when it was ascertained from the receipts that there were three hundred and eighty-one barrels included in the purchase.
Between the 14th and 28th of February, 1871, numerous creditors of Hartfield instituted their separate actions against him in the Green Circuit Court, alleging that he was about to make a fraudulent disposition of his property to avoid the payment of his debts, and obtained attachments which were placed in the hands of the sheriff, and claimed by the appellees (the creditors) to have been levied by that officer on the three hundred and eighty-one barrels of whisky.
All the proof introduced on the question of fraud conduces to show that Hartfield was making efforts to so dispose of his property as to avoid the payment of his debts, and the attachments were properly sustained.
The actions by the attaching creditors were consolidated, and by change of venue transferred to the Adair Circuit. Newcomb, Buchanan & Co., appellants, upon their petition were made parties to the proceeding in behalf of the creditors, and claimed that they were the owners of the whisky prior to the date at which the claims of the various creditors were asserted by reason of their purchase from Chambers Bros. & Co. and Hartfield. While the actions were being prepared for trial some compromise seems to have been made as to all the whisky except one hundred barrels, and these, numbered from 68 to 167, inclusive, are alone the subject of this litigation.
The actions having been transferred to equity, the chancellor upon the hearing in the court below adjudged that the one hundred barrels of whisky were first liable to the claims of the attaching creditors, from which judgment Newcomb, Buchanan & Co. have appealed.
The judgment below is sought to be maintained on two grounds: First, that no title to the whisky passed to Newcomb, Buchanan & Co., either under their contract with Hartfield or with Chambers Bros. & Co.; second, that if the sale was complete, the property sold remaining in the possession of the vendor, such sale was constructively fraudulent as to the attaching creditors.
Although many grounds are relied on by counsel of appellants for a reversal of the judgment, we deem it necessary only to determine the essential question involved in the issue, and that is, did Newcomb, Buchanan & Co. acquire a right of property in the whisky by their purchase from Hartfield and from Chambers Bros. & Co.? By the terms of the contract the appellants were to pay the amount of the tax in cash and the remainder in four and six months without interest. The price of the whisky was estimated at seventy cents per gallon short (that is, in bond), the tax being unpaid, and each barrel as containing forty gallons. Upon this estimate the appellants paid in an acceptance on the day of sale four thousand dollars, and in a few days thereafter a like sum in a check on one of the Louisville banks, and before the attachments issued had paid (or nearly so) the full amount due for the whisky, less the tax, and on a final settlement of the account had overpaid the amount due by two thousand six hundred dollars. The most of the warehouse receipts were delivered when the contract was concluded, and the balance in a few days after, the whisky to remain in the warehouse at appellants' option. It was further agreed that the whisky was to be regauged at Louisville under the supervision of appellants, the costs of transportation and regauging to be advanced by them and deducted from the aggregate sum to be paid for the whisky, the price being one dollar and twenty cents per gallon, the quantity to be ascertained by the regauging at Louisville.
Some of the witnesses express their opinions as to the legal effect of the contract, and by their statements have confused to some extent the facts upon which the rights of the parties must be determined; but the recital already made contains in substance the contract between them.
It is now insisted by counsel for the appellees that, inasmuch as the quantity of whisky to be paid for could not be ascertained until it was regauged at Louisville, no title passed to the appellants; that Hartfield could not tell how much money he was to receive from appellants, nor the latter how much whisky they were to receive from Hartfield, until this part of the contract was complied with. If the contract in this case had been for the sale and delivery of one hundred barrels of whisky, to be delivered at Louisville, and the quantity to be there ascertained and paid for at the rate of one dollar and and twenty cents per gallon, there could be no question but that the title to the property would be with the vendor until the delivery and measurement had been made, there being neither identification, payment, delivery, nor the quantity ascertained.
Chitty on Contracts, page 375, says, "Although a contract for the sale of goods be complete and binding in other respects, the property in them remains in the vendor and at his risk if any material act remains to be done before the delivery, either to distinguish the goods or ascertain the price thereof."
In Parsons on Contracts, page 441, it is said, "The property does not pass absolutely unless the sale be completed, and it is not completed until the happening of any event expressly provided for, or so long as any thing remains to be done to the thing sold to put it in a condition for sale, or to identify it or distinguish it from other things, or determine its quantity, if the price depends on this, unless it is to be done by the buyer alone."
Although the general doctrine upon the subject of sales of personal property may be readily understood, much difficulty often arises in applying the principle involved to the facts, and particularly in determining whether or not the title passes to the vendee. If the title passes, the sale is absolute and complete; if not, it is merely executory, or an agreement to sell. The facts of this case do not bring it within the rule laid down by either of the elementary writers referred to, for the reason that the sale was completed by the delivery of the property or its representative, the warehouse receipt, before the quantity was to be ascertained.
In Parsons on Contracts, page 435, it is said, "All that is essential to the sale of a...
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