Wheeler v. Payne

• Decision Date: 04 April 1921
• Docket Number: 107
• Citation: 1 Pa. D. & C. 155
• Parties: Wheeler v. Payne
• Court: Pennsylvania Commonwealth Court

1 Pa. D. & C. 155

Wheeler v. Payne

No. 107

Common Pleas Court of Crawford County, Pennsylvania

April 4, 1921

Rules for new trial and for judgment n. o. v. on question reserved.

Albert L. Thomas and Terrance E. Henratta for plaintiffs.

Frank J. Thomas and Otto Kohler, for defendant.

OPINION

Sept. T., 1918,

PRATHER P. J., April 4, 1921. --

This was an action brought by plaintiffs to recover the purchase price of a quantity of hay alleged to have been sold in February, 1918, to defendant, and which was consumed by fire, June 12, 1918, before it was actually delivered. Baling of this hay was begun on June 12th, and about two-thirds of it baled; the fire came that night and burned up the press and all the hay, baled and otherwise.

The bargain relied upon as constituting a sale and delivery of the hay in question, as narrated by Elmer Wheeler, plaintiff, as taken from his testimony, is: " He (defendant) told me -- I says: 'Are you about ready for that hay?' He said, 'yes,' and I said: 'Mosiers are pressing hay at $ 20 a ton.' He says: 'Is that so? -- 'Yes, sir, that is so.' He says: 'I can give you as much as any living man.' I said: 'Then you can have my hay for $ 20 a ton, and I will board you and you put it on the car.' -- 'All right,' he says."

This he testifies took place at the house of the defendant one evening the latter part of February, 1918. He also testifies that defendant gave him a check for $ 100 to apply on the purchase price of this hay.

Capitola Wheeler, his wife, corroborates the testimony of her husband as to this.

All of this is flatly contradicted by five members of defendant's family, who say that they heard the conversation had between the parties, and the subject of buying and selling hay was not mentioned.

At this point we may observe that defendant's contention that this conversation did not take place and that he did not purchase this hay is, in our opinion, sustained by the decided weight of the evidence, which preponderance increases when the collateral and circumstantial facts are added thereto.

For this reason, a new trial should be granted, unless the legal question involved requires judgment n. o. v. in favor of defendant.

For the purposes of this legal question we must consider the bargain made as plaintiff testifies, and then, in the light of its language and the conduct of the parties, inquire whether it is an executed contract.

(a) Does the language relied upon transfer the title to this hay from Wheeler to Payne?

(b) Was it the intention of the parties that it should?

In Woolsey v. Axton & Son, 192 Pa. 526, 530, the Supreme Court said: " They (many authorities) undoubtedly hold that a contract for the sale of a chattel may be fully executed while the actual possession remains in the vendor; but in all such cases the intention of the contracting parties, that a constructive delivery shall immediately take place, is either expressed or implied."

We think the court's continuing remark, " The implication from this contract and the circumstances is directly the reverse," is quite applicable to the facts now before us.

A vendor may retain possession of a chattel for purposes of collecting payment therefor after the right to the property under the contract has passed to the vendee: Ballentine v. Robinson, 46 Pa. 177; Henderson v. Jennings, 228 Pa. 188.

" An absolute payment in cash... is always implied when nothing is said" concerning the time or manner of making payment: Benjamin on Sales, § 706.

In our case no agreement was made as to credit.

" No agreement having been made for a credit, it was, of course, a contract for a cash sale, and without actual delivery the property would not pass to the vendee until payment of the consideration:" Welsh v. Bell, 82 Pa. 12.

In Mitchell v. Zimmerman, 109 Pa. 188, it was held that the title to goods sold does not pass to the purchaser until the price is paid, unless payment is waived.

In Scott v. Wells, 6 W. & S. 357, Gibson, C. J., said: " Even where actual possession has not been taken, the ownership and risk pass by the contract, if nothing remains to be done to the property by the vendor (such as counting, measuring, weighing or filling up) to ascertain the number, quantity or weight. Thus, in Rugg v. Minett, 11 East. 210, turpentine had been sold at so much the hundredweight in casks, to be taken at the marked quantity, except two, out of which the others were to be filled up before delivery, and those two were sold as containing indefinite quantities. The buyer employed a person to do the filling, but before he completed it, the warehouse, with its contents, was destroyed by fire, and it was held that the property in those filled up had passed to the buyers, because nothing remained to be done to them by the vendors."

In Winslow v. Leonard, 24 Pa. 14, the Supreme Court held: " Where the lawful form of contracting is pursued, the vesting of the title always depends upon the intention of the parties, to be derived from the contract and its circumstances." See Com. v. Hess, 148 Pa. 98.

In Robb v. Zern, 42 Pa.Super. 182, plaintiff sold defendant three cows and three calves for $ 113, and received $ 3 hand-payment, and the purchaser directed the seller to keep the cows until he notified him to deliver them at a designated place. In the meantime, one of the cows died. Held, in an action by the seller to recover from the buyer, that the title did not pass till delivery, and seller could not recover. See, also, Brown v. Reber, 30 Pa.Super. 114.

In Gonser v. Smith, 115 Pa. 452, 460, the Supreme Court said:

" We understand that the plaintiffs were the owners of the lumber sold; that this lumber was actually manufactured and placed in separate piles; that it was selected by the defendant, and distinctly marked and designated. As the exact quantity was unknown, an estimate was made by the parties for the purposes of sale; that bills of sale were prepared by the vendee, and were signed by the vendors, in which appropriate words were used to specify and designate the subject-matter of the sale, and to perfect the sale and title to the vendee. The defendant paid the earnest-money, gave his notes for the estimated amounts, and paid them as they became due; that portions of the lumber were shipped, from time to time, on his orders, and that he exercised, and continued to exercise unquestionable rights of ownership over the lumber up to the time it was destroyed by fire.

" What we have here stated is the substance of the findings and an examination of the evidence satisfies us that they were warranted by the testimony. Now, if there be any doubt as to the law governing this case, it may be dissipated by reference to Winslow, Lanier & Co. v. Leonard, 24 Pa. 14, where it was held that though the right of the vendor to rescind a sale because of the failure of the vendee, or his refusal to pay, continues so Iong as any weighing, measuring or other thing remains to be done on his part, yet this test does not apply to the question of the vesting of the title in a case where the vendor has no cause of rescission. It is further said in this same case that where the lawful form of contracting is pursued, the vesting of the title always depends on the intention of the parties, to be...