Kenner v. Allen & Syme , 1 McGl. 214 ( 1881 )

Rogers, J.

The commercial firm of Allen & Syme, on the-8th October, 1880, purchased through a broker 190 sacks of rough rice, weighing 34,305 lbs., at $3 75 per barrel of 162 pounds. Defendants aver that in sending for the purpose of sampling said rice, and to ascertain if it corresponded with the description of the rice which they had purchased, and to haul it to the warehouse, they were unable to obtain view or delivery of the same, whereupon they purchased lice elsewhere, and they had a right to consider, and did consider, the contract at an end by the failure of the seller (plaintiff) to deliver the rice.

At the time of the sale nothing was said as to the place of delivery, and defendants urge in their argument that they purchased the rice to be delivered on the levee from the steamboat’ Whisper, and that it having been removed from that place, the sale was not consummated by delivery.

This was not set up as a defense in the answer. In fact, it is distinctly alleged that defendants received “ an order on the steamboat Whisper for the same, and an order on Warner & Hoelzel for part thereof.” The evidence shows that when the broker first called with the samples and exhibited them to defendants, they offered $8 75 per 1(52 pounds. There is no doubt that the samples were examined by defendants to their satisfaction, and the broker, after the examination, returned with the samples to make report to his principal .of the offer. He returned some hours after with the samples, public weigh-er’s certificate, and the acceptance of the offer by the plaintiff, evidenced by a contract signed by his broker; au order was also given at the same time on the steamer Whisper for the 190 sacks of rice. It was discovered by plaintiff’s agent a short time after this that some eighty or ninety sacks had been hauled from the levee through mistake to the warehouse of Warner & Hoelzel, and another order for this number was at once sent to defendants with a note of explanation. Article 2484, O. 0., is relied upon as sustaining defendants.

“ The delivery must be made on the place tohere the thing which is of the object of the sale was at the time of such sale, if not otherwise agreed upon.”

If we must give a strict and technical application of this provision, we should say, that the evidence discloses that at the time of the sale, three or four o’clock P. M., of October 8th, when the contract proposed by defendants had been accepted by plaintiff actually and finally, the thing sold was partly on the levee and partly in the Warner & Hoelzel warehouse, for defendants assert the removal had taken place at two o’clock P. M. of that date.

Delivery is the essence of the contract of sale; hut parties may stipulate how such delivery shall be made. In oases where no such stipulations are made, the law provides the manner, in order that agreements made in good faith shall not he arbitrarily set aside at the caprice or design of one of the contracting parties. There is no doubt plaintiff’s broker believed that the sacks of rice were on the levee when he gave thé order; in truth, he was mistaken, for a part of them had been removed. He is not chargeable with bad faith or deception. It was not considered material by defendants, for when he sent the second order with his explanation, no protest was made, nor was a claim for rescission of the contract suggested. It was an error of fact, not such a one as would invalidate the contract; to have such an effect the error must be in some point, which was á principal cause for making the contract. C. C. 1821, 1823. Nothing in the record shows that defendants were in the least affected by the situation oí the rice; there was no injury, no inconvenience, rather that the warehouse afforded greater protection to the grain, and more facility"for its being properly sampled.

“Le veudeur ne pent pas, sans une juste causo, déplacer 1’objet mobilier vendu, et remire.par conséqueut l’etilévernent plus difficile et dispendieux pour l’acheteur. S’il le fait, il doit indemniser ce déruier de ce qu’il lui en aura couté de flus pour l’enlevemeut.”^* 1 Troplong on Sale, § 291; Pothier, Contract of Sale, § 52; Pothier, Oblig. 5!S.

And this we understand to be the general commercial law as adopted from the civil law. Benjamin on Sales, Ed. 1868, pp. 504, 505.

We believe the judgment appealed from is correct, and it is, therefore, affirmed.

Rehearing refused.

* The seller cannot, without just cause, change the location of the movable sold, and thereby render its removal more difficult and expensive to the purchaser. If he so does, he must indemnify the latter for the extra expense of such removal."