Summary
In Waldo v. Belcher, 33 N.C. 609, the corn was destroyed before the day when it was to have been delivered, which distinguishes it from Willard v. Perkins and from this case.
Summary of this case from Long v. SpruillOpinion
December Term, 1850.
Where a person had in store 3,100 bushels of corn, and sold 2,800 bushels of it to A, but the 2,800 bushels were never separated from the 3,100 bushels, and the whole was afterwards destroyed by fire: Held, that the property in the 2,800 bushels had not passed to A, as there had been no delivery; and therefore A was not bound to pay the stipulated price. And this result follows, whatever may have been the intention of the parties as to the property passing presently, on the contract being made.
APPEAL from the Superior Court of Law of PITT, at Fall Term, 1849, Bailey, J., presiding.
(610) B. F. Moore and Biggs for plaintiffs.
Rodman for defendant.
Ferguson Milhado, of Norfolk, had in store for the plaintiffs, 3,134 bushels of corn. On 25 March, 1848, the plaintiffs sold to the defendant 2,822 bushels of the corn at $2.60 per barrel, and in payment took the bill of the defendant (which was never paid and was returned at the trial) and gave the defendant an order upon Ferguson Milhado for the corn, which order was returned by them to the defendant. On 2 May, 1848, the parties agreed that the plaintiffs should draw a bill on Ferguson Milhado for $117.66, at ninety days, which the order should indorse; that the corn mentioned in the order should be subject to the control of the defendant, and should be sold by him before or at the maturity of the bill, and the proceeds applied to the payment of the bill; and if the proceeds should be more or less than the amount of the bill, it was to be a matter for future adjustment. The bill was accordingly drawn and indorsed, and accepted by Ferguson Milhado, who paid it to the indorser, by whom it was discounted for the plaintiffs, and it was finally repaid to Ferguson Milhado by the plaintiffs. The whole of 3,134 bushels of corn remained credited to the plaintiffs on the books of Ferguson Milhado, until June, 1848, when it was destroyed by fire. The 2,822 1/2 bushels were never separated from the bulk of 3,134 bushels.
The action was assumpsit for the price of 2,822 1/2 bushels of corn at $2.60 per barrel, making $1,467.15. The court charged that if the plaintiffs, on 25 March, delivered to the defendant, and he accepted the order for the corn, the property passed, and the subsequent loss by fire fell on the defendant. And if the property did not pass by the transaction of 25 March, it did pass by the agreement of 2 May, if the evidence was believed.
The defendant excepts to the charge; and we think there is error. (611)
To entitle the plaintiffs to recover, the property of the corn must have passed to the defendant, so as to make it his corn when it was burnt. We think the property did not pass, either by what was done on 25 March or on 2 May, because the corn was not in a condition to be delivered. The 2,822 1/2 bushels were not separated from the bulk. It could not, therefore, be identified — it was not specific. The defendant could not tell what corn was his.
We are relieved from the necessity of discussing this question, because it is settled by several cases directly in point. White v. Wilks, 5 Taunton, 176. The agreement was for twenty tons of oil in the vendor's cisterns, and, in point of fact, the cistern contained much more than twenty tons. Held at nisi prius that no property passed, because the contract did not attach on any particular portion of the oil. The Common Pleas approved of the decision. One of the judges says, "Suppose a part of the oil had leaked out, can any one say whose oil it was?" So, in Bush v. Davis, 2 M. and S., 397. The agreement was for ten tons of flax at "Davis' wharf, by vrow Maria." he vendors had more than ten tons at "Davis' wharf by vrow Maria." The King's Bench decided that no property passed, although an order was given for ten tons and was accepted by the wharfinger. Le Blanc, J., says "it was to be ascertained what goods the vendee was to have." Something was to be done to ascertain the individuality. Blackburn on Sales, 124, 56 L., lib. 68, and the cases there cited; Austin v. Craven, 4 Taunton, 644.
It was insisted that, in this case, no measuring was necessary or intended to be made, and there was no reason why the defendant should desire his corn to be separated from the bulk until he made sale of it, and that the parties intended by what was done to deliver the corn — to pass the property (612) as an executed contract; and so was distinguished from Devane v. Fennell, 24 N.C. 36.
It is true, when the property is specific and is in a condition to be identified and delivered, and the intention is proven to be that the property shall presently pass, it does pass, although something remains to be done, as to put bows upon a wagon which was sold and delivered (Allman v. Davis, 24 N.C. 12), or to measure, or to weigh, so as to ascertain the precise amount. For instance, if I sell all the corn in a certain crib at $2.60 per barrel, and it is the intention that the corn shall presently pass to the purchaser and become his property, it does pass, although it is necessary afterwards to have the corn measured to ascertain the amount and fix on the sum to be paid; because, supposing the thing to be in a condition to be delivered, the fact that something remains to be done to ascertain the quantity and fix the amount to be paid only raises a presumption that it was the intention of the parties that the property should pass until the weighing or measuring was done. Devane v. Fennell, 24 N.C. 36. But this presumption may be rebutted, and the property does pass, if the jury are satisfied that such was the intention. Allman v. Davis, 24 N.C. 12.
But it must be borne in mind that this is only true in regard to such things as are in a condition to be delivered. If the corn is in bulk, so that there is no telling what corn in particular was sold, there the property does not pass, although it was the intention of the parties to consider it as delivered and that the property should pass. The intention may rebut a presumption, but it is impossible by an intention to change an indefinite into a definite thing. If I sell one hundred bushels of corn in my crib, which contains a thousand, although the purchaser pays me the money, and it is the intention that the property therein shall presently pass to him, yet it does not pass, because (613) it is physically impossible. It cannot be told what corn is his until it is separated. The purchaser could not bring detinue, because he cannot describe the specific thing; and if any of the corn in the crib be stolen or damaged before the one hundred bushels are delivered, can it be told whose corn it was? Or, rather, would not the purchaser have the right to call for one hundred bushels of sound corn, the loss or damage to the contrary notwithstanding? The vendor should have required the vendee to assume the risk when the corn was put at his disposal.
PER CURIAM. Judgment reversed, and venire de novo.
Cited: Willard v. Perkins, 44 N.C. 255; Morgan v. Perkins, 46 N.C. 172; Long v. Spruill, 52 N.C. 99; Blakely v. Patrick, 67 N.C. 42; Edmundston v. Fort, 75 N.C. 407; Austin v. Dawson, ib., 526; Lumber Co. v. Wilcox, 105 N.C. 38; Holman v. Whitaker, 119 N.C. 115.