Foster v. Ropes , 111 Mass. 10 ( 1872 )

Colt, J.

Under the instructions given, the jury were allowed to find that the sale of all the fish was completed, so as to pass the title to the defendant, on April 15, the day when the contract of sale was entered into. This action is to recover the price of the whole, as for goods sold and delivered.

The defendant asked the court to rule, upon all the evidence, that there was no sale at that time, and that, under a count for goods sold and delivered, the plaintiff could not recover for the fish which remained in Beverly after the 400 quintals were taken away by him. This ruling was refused, and the jury were told, in substance, that the plaintiff could not recover for the fish in Beverly, if anything remained to be done to them by the plaintiff after the agreement of April 15, unless they were satisfied that it was the intention and agreement of the parties that the sale should be complete and that the title should pass at that time. The point made by the defendant is, that the last part of this instruction was not supported by the evidence, and was calculated to prejudice his rights, even if correct as an abstract proposition, and as applicable to a different state of facts ; and we are of opinion that the objection is well taken.

In the sale of personal property, the general rule of law is, that when, by the terms of the contract, the seller agrees to do anything for the purpose of putting the property into a state in which the buyer is bound to accept it, or into a condition to be delivered, the title will remain in him until he has performed the agreement in this respect. In Rugg v. Minett, 11 East, 210, where a quantity of turpentine in casks was sold in lots at so much per hundred weight, it was held - that the property had passed in those lots only in which the casks had been filled up as agreed, because as to them only had everything been done by the 'sellers, which lay upon them, to put the goods in a deliverable state. And see also Acraman v. Morrice, 8 C. B. 449; Morse v. Sherman, 106 Mass. 430.

This general rule will not prevail, where, by the terms of the agreement, the title is to vest immediately in the buyer, notwithstanding something remains to be done to the goods by the seller after delivery. Thus in Riddle v. Varnum, 20 Pick. 280, it was held that the jury, where there was evidence of such intention, might infer a delivery to the buyer sufficient to vest the title, although something remained to be done by the seller; while the general doctrine above stated, in cases where there is no evidence of intention to complete the sale and pass the title, is fully affirmed. And in Turley v. Bates, 2 H. & C. 200, it was said that the court must look to the intention as drawn from the terms of the contract, in order to determine whether title to the property immediately passed. Young v. Matthews, L. R. 2 C. P. 127. Story on Sales, § 298 a.

In all cases, however, the intention of the parties as to the time when the title is to pass can be ascertained only from the terms of the agreement, as expressed in the language and conduct of the parties, and as applied to known usage and the subject matter. It must be manifested at the time the bargain is made. The rights of the parties under the contract cannot be affected by their undisclosed purposes, or by their understanding of its legal effect.

In the case at bar, it was not in dispute at the trial, that, by the contract of April 15, the fish was to be put on flakes and further dried by the plaintiff, and afterwards weighed by him for the purpose of ascertaining the quantity and price. This was to be done for the purpose of fitting the goods for delivery. By the general rule, therefore, the property not actually taken away by the defendant remained in the plaintiff, unless there is evidence which would justify the jury in finding that by further agreement, notwithstanding this feature of the contract, the title was to pass immediately to the defendant. We can find no evidence of such agreement in the case stated. All that was said and done on April 15 is consistent with an intention to leave the title in the plaintiff until the fish were fully cured, weighed and delivered, according to the general rule of law ; and there is nothing to vary the application of that rule. The letters subsequently written by the defendant do not seem to us to contain anything which amounts to an admission of such an agreement; nor were the statements in the letters written to him by the plaintiff of such a character that his silence in regard to them can be construed into an implied admission.

The plaintiff further claimed, at the argument, that the bill of exceptions itself shows that all the evidence bearing on this point is not reported. But the record, after reciting the evidence and its bearing on the point, states that “ upon all the evidence ” the ruling asked for by the defendant was refused. This means that the purport of all the evidence in the case, bearing upon the point raised, is stated; and implies that nothing is omitted which the judge deemed material.

The instructions given upon the question of the delivery of the fish which remained in Beverly, not being such as the defendant upon his request was entitled to, a new trial must be had unless the plaintiff remits, and takes judgment only for the 400 quintals, at the price agreed, which were actually taken by him. And in case of a new trial, as the alleged breach of warranty has been found for the plaintiff on the issues already tried, and no other question is made as to the defendant’s liability for the goods actually removed, the trial must be confined to the single point raised by these exceptions. Exceptions sustained.