Seckel v. Scott

• Decision Date: 30 September 1872
• Citation: 1872 WL 8514,66 Ill. 106
• Parties: EDWARD SECKEL et al.v.EMERSON W. SCOTT et al.
• Court: Illinois Supreme Court

66 Ill. 106

1872 WL 8514 (Ill.)

EDWARD SECKEL et al.

v.EMERSON W. SCOTT et al.

Supreme Court of Illinois.

September Term, 1872.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Cook county; the Hon. JOHN G. ROGERS, Judge, presiding.

Messrs. ROSENTHAL, PENCE & MOSES, for the appellants.

Messrs. HUNTER & PAGE, for the appellees.

Mr. JUSTICE MCALLISTER delivered the opinion of the Court:

Appellants having in their store in Chicago a specific lot, comprising 250 firkins of butter, September 27, 1871, sold, and appellees bought, the entire lot at the price of fourteen cents per pound.

The terms of sale were, in substance, that immediately upon closing the bargain, the buyers were to take, at the store of sellers, and pay for, 100 firkins, also pay sellers as earnest money $2 for each firkin remaining of the lot, which buyers were also to take at sellers' store, and pay balance of price within thirty days.

On closing bargain, the buyers, instead of taking 100, took 125, and soon after 16 more, making in all 141 firkins which they took and paid for, leaving 109 to be taken and balance of price paid within thirty days, and upon which they paid the earnest money, as stipulated. Before these last were taken by the buyers, the great fire, October 8 and 9, came, and the goods were destroyed. October 26, 1871, the buyers demanded them of sellers, offering to pay the balance of price. The refusal was placed solely on the ground of the destruction of the goods.

Upon these facts, the buyers brought this action, declaring in special counts for not delivering goods bargained and sold, and the common counts. They recovered, and the sellers bring the case here by appeal.

The questions in the case arise upon the giving and refusing of instructions to the jury.

For defendants, the court was requested to instruct “that, between the vendor and vendee, the title to personal property passes without any delivery whenever the sale is completed, and an agreement to sell an article by weight, when the article is identified or separated from other like articles, and the price is agreed upon between the parties, may be a complete sale, if the parties intended it as such, although the article has not been weighed.”

This instruction was refused, and the same, or its equivalent, is not contained in any that was given.

The question in controversy upon the facts in evidence was, whether the sale was so far completed as that the property and risk were in purchasers. If the property passed, the risk was with them, and they could not recover.

The instruction, though somewhat abstract in form, was directly applicable, and if the propositions of law embodied in it are correct, then it was error to refuse it. They are two: (1.) That, as between vendor and vendee, the title passes upon the completion of the sale, without any delivery. (2.) That a sale of specific articles by weight, and the price agreed upon between the parties, may be a complete sale, although the articles have not been weighed, if the parties intended it should be complete.

The cases of Wade v. Moffett, 21 Ill. 110, and Kohl v. Lindley, 39 Ill. 195, sustain the first proposition.

The second proposition is sustained by the cases of O'Keefe v. Kellogg, 15 Ill. 347, and Holliday v. Burgess, 34 Ill. 193. In the latter case, the court said: “As between the parties, the title to personal property passes without any delivery whenever the sale is completed. An agreement to sell an article by weight or measure, when the article is identified and the price agreed upon, may be a complete sale if the parties intended it as such, although the article sold is not weighed or measured,” citing Riddle v. Varnum, 20 Pick. 280. And it was also held that, whether the sale was complete was a question of fact for the jury. This rule was laid down in Wade v. Moffett, supra, citing Kidder v. McKnight, 13 Johns. 293; Shurtliff v. Willard, 19 Pick. 209; Houdlette v. Tallman, 14 Maine R. 400. So, in Bell v. Farrar, 41 Ill. 404, the court said: “As to the real question, whether the sale was so far complete as to vest the title to the oats in Cannon, this was properly left to the jury by instructions on the part of the defendant, to which we can discover no good objection.”

We do not understand from the evidence, that, by the terms of the contract, anything was required to be done by the vendors to ascertain the quantity.

In O'Keefe v. Kellogg, supra, the instruction was as follows: “If, by the terms of the contract of sale of personal property, anything remains to be done by the parties, as in the case of...