Nicholson et al. v. Taylor et al.

• Decision Date: 01 January 1858
• Citation: 31 Pa. 128
• Parties: Nicholson et al. versus Taylor et al.
• Court: Pennsylvania Supreme Court

31 Pa. 128

Nicholson et al. versus Taylor et al.

Supreme Court of Pennsylvania.

ERROR to the District Court of Philadelphia.

J. Cook Longstreth, for the plaintiffs in error.—Where the sale is what the Roman lawyers call a perfect sale, the rule of the English law is the same as ours, to wit: that the property is changed without actual delivery of possession; 3 Stephens' Nisi Prius 2702; Blackburn on Sales 171; Addison on Contracts 225; Smith on Contracts 331; Bloxam v. Saunders, 4 B. & C. 941; Bowen v. Burk, 1 Harris 148; McCandlish v. Newman, 10 Harris 465. Where the goods to be sold are specifically identified, and the price concluded, the mere fact that the articles are to be counted, measured, or weighed, will not prevent the transmission of title to the vendee, unless the express terms of the contract show that it was not to pass until such act done: Scott v. Wells, 6 W. & S. 357; Smyth v. Craig, 3 W. & S. 14; Dennis v. Alexander, 3 Barr 50; Hutchinson v. Hunter, 7 Barr 140, 144; Winslow v. Leonard, 12 Harris 16; Smith on Contracts, by Rawle, note 1, page 427; Golder v. Ogden, 3 Harris 528. The case of Nesbit v. Burry, 1 Casey 208, is within the exception, for, by the express terms of the contract in that case, the cattle were to be weighed on specified scales, and by the introduction of this term, the intention that the property should not pass until it was complied with, was manifest.

Parsons, for the defendants in error, cited Addison on Contracts 222, 223; Simmons v. Swift, 8 D. & R. 693; Hanson v. Meyer, 6 East 614; Busk v. Davis, 2 M. & S. 397; Shepley v. Davis, 5 Taunt. 616; Logan v. Le Mesurier, 11 Jurist 1091; McDonald v. Hewett, 15 Johns. 349; Davis v. Hill, 3 N. H. 382; Phelps v. Willard, 16 Pick. 29; Ward v. Shaw, 7 Wend. 404, 406; Andrew v. Dieterich, 14 Id. 31, 32; Lester v. McDowell, 6 Harris 92; Hutchinson v. Hunter, 7 Barr 140, 143; Smyth v. Craig, 3 W. & S. 20; Scott v. Wells, 6 Id. 366; Golder v. Ogden, 3 Harris 528; Winslow v. Leonard, 12 Id. 14, 16; Nesbit v. Burry, 1 Casey 208; Blydenburgh v. Welsh, 1 Bald. 331; Shepherd v. Hampton, 3 Wheat. 200.

The opinion of the court was delivered by THOMPSON, J.

"When the lawful form of contracting is pursued," said Mr. Justice LOWRIE in Winslow, Lanier & Co. v. Leonard, 12 Harris 14, "the vesting of the title always depends upon the intention of the parties, to be drawn from the contract and its circumstances," and "it is perfectly legitimate to point to the want of measuring and setting apart as evidence, in the very nature of the transaction, that it was not intended as a perfect sale:" Id. Going further in this direction than mere evidence, C. J. GIBSON, in Hazard v. Hamlin, declared that "where nothing is paid or delivered, it is agreed on all hands that the contract is merely executory." This is true of such a contract standing alone; whether taken as an axiom or as evidence merely, the difference is in terms only. No intention is to be drawn from a contract but what it expresses, when there is nothing else to manifest it; so that the difference of terms in stating the proposition leaves the rule the same, namely, that so long as anything remains to be done as between the vendor and vendee, for the purpose of ascertaining the amount and price of the article, the property and risk remains in the vendor; it is not changed: Addison on Contracts 222, 223; Hanson v. Meyer, 6 East 614; Ward v. Shaw, 7 Wend. 404; Lester, Sennett & Co. v. McDowell, 6 Harris 92; Hutchinson v. Hunter, 7 Barr 140; Smyth v. Craig, 3 W. & S. 20; Winslow, Lanier & Co. v. Leonard, 12 Harris 14; Nesbit v. Burry, 1 Casey 208. This rule is predicable of cases where no actual delivery of the property has taken place, and it is sought to give the contract the effect of changing the possession. If parties choose to deliver property without the price being fixed, the property will pass, because it is the contract and intention to pass it. But we have to do with a case not of this last kind. The contract is as follows: —

"Sold Messrs. R. L. & C. L. Nicholson, load of Pine creek lumber, within the neighbourhood of 5000 feet of plank, at $15.50 and expenses, take a note at...