Welch v. Spies

• Decision Date: 21 October 1897
• Parties: ED. WELCH v. WILLIAM SPIES, Appellant
• Court: Iowa Supreme Court

72 N.W. 548

103 Iowa 389

ED. WELCH v. WILLIAM SPIES, Appellant

Supreme Court of Iowa, Des Moines

October 21, 1897

Appeal from Cass District Court.--HON. A. B. THORNELL, Judge.

ACTION at law to recover the unpaid portion of the price of corn alleged to have been sold and delivered by the plaintiff to defendant. There was a trial by jury, and a verdict and judgment for the plaintiff. The defendant appeals.

Affirmed.

Willard & Willard and Jas. B. Bruff for appellant.

Curtis & Follett for appellee.

OPINION

ROBINSON, J.

The plaintiff claims that in the latter part of July, in the year 1894, he sold and delivered to the defendant two thousand three hundred bushels of corn contained in two cribs, at the agreed price of fifty cents per bushel. The defendant admits that he entered into a verbal agreement with the plaintiff for the purchase of not less than one thousand, six hundred nor more than two thousand bushels of corn at the price stated, and that fifty dollars were paid to the plaintiff by virtue of the agreement; but denies that the corn was delivered, and alleges that the plaintiff has failed and refused to perform his part of the agreement. Soon after the sale is alleged to have been made, and while the corn remained in the crib, it was destroyed by fire. The verdict was for eight hundred and twenty dollars and ninety-three cents, and the judgment rendered was for that sum, with interest and costs.

I. The chief controversy between the parties to this action relates to the delivery of the corn. When the agreement in question was made, one crib, which had not been opened, contained one thousand, six hundred bushels. Corn had been taken from the other crib, but it then contained about seven hundred bushels. The grounds upon which the defendant insists that the corn was not delivered are stated to be that he purchased but a part of the corn in the two cribs, and there was never any separation of the part he purchased from the remainder; that the plaintiff reserved the right to retain two or three hundred bushels for his own use, and that he had not set it apart; that a man named Hunter was entitled to fifty bushels of corn, which had not been separated from the mass; and that five or six hundred bushels were to be shelled by the plaintiff, and delivered to a brother of the defendant, and that had not been done. There is some evidence to sustain the claims thus made. But the evidence on the part of the plaintiff tends strongly to show that by the agreement and the payment of the fifty dollars, the parties intended to transfer to the defendants the title to all the corn, subject to the right of the plaintiff to retain for his own use two or three hundred bushels from the broken crib, and that when the money was paid the defendant said to the plaintiff: "The money is yours, and the corn is mine," to which the plaintiff assented. Some claim is made that the plaintiff was to haul the corn to the place where the defendant wished to have it delivered, but the jury was authorized to find that, although the plaintiff was to render some assistance in hauling, that was not to constitute any part of the delivery. The rule in regard to the sale and delivery of personal property was stated in Cook v. Logan, 7 Iowa 141, to be "that, where some act remains to be done in relation to the articles which are the subject of the sale,--as that of weighing or measuring, or, as in this case, that of separating and setting them apart from the bulk, so that they may be distinguished and identified,--the performance of such act is a prerequisite, and until it is performed the property does not pass to the vendee." That rule was, in effect applied or approved in Courtright v. Leonard, 11 Iowa 32; Rosenthal v. Risley, 11 Iowa 541; McClung v. Kelley, 21 Iowa 508; Snyder v Tibbals, 32 Iowa 447; Harwick v. Weddington, 73 Iowa 300, 34 N.W. 868; Mellinger v. Hunt, 94 Iowa 351, 62 N.W. 813. But the title to property which is the subject of a contract of sale may pass at once, even though something remain to be done to ascertain and fix the rights of the parties,--as, to weigh or measure the property sold. The intent of the parties is of controlling importance. In Bank v. Reno, 73 Iowa 145, 34 N.W. 796, it was said: "The question whether the title to personal property which is the subject of a contract has passed to the vendee under the agreement is one of intent. If there has been an actual delivery, and nothing remains to be done to ascertain the price or quality of the article, the strong presumption is that the intention was to pass the title." In Riddle v. Varnum, 37 Mass. 280, 20 Pick. 280, 283, it was said: "But in the case of sales where the property to be sold is in a state ready for delivery, and the payment of money, or giving security therefor, is not a condition precedent to the transfer, it may well be the understanding of the parties that the sale is perfected, and the interest passes immediately to the vendee, although the weight or measure of the article sold yet remains to be ascertained. Such a case presents a question of the intention of the parties to the contract." See, also, Brown v. Wade, 42 Iowa 647; Hurd v. Cook, 75 N.Y. 454; ...