Devane v. . Fennell , 24 N.C. 36 ( 1841 )

Plaintiff declared that the defendant had taken possession of and carried away a certain raft of timber belonging to the plaintiff. It was proven that the timber was sent by the plaintiff to the town of Wilmington for sale; that the owners of the Clinton Steam Sawmill had bargained for the raft of timber with the agent of the plaintiff, and had agreed to pay him $4 per 1,000 feet; that at the time the bargain was made the timber was lying in the river, and was afterwards put in the timber pen, where all the timber belonging to the mill was kept, to be inspected; but the next day, before it was inspected, the timber was taken away, in consequence of which the owners of the mill did not pay or offer to pay for it. The defendant contended that from this proof the plaintiff had parted with his title to the timber, and the possession was in the owners of the mill, and that consequently he could not recover. His Honor was of the opinion that there were no such sale and delivery as passed the title out of the plaintiff, and so instructed the jury. And evidence having been given to prove the taking by the defendant, the jury returned a verdict for the plaintiff. A rule for a new trial was discharged, and from the judgment rendered in pursuance of the verdict the defendant appealed to the Supreme Court. The owners of the saw mill agreed to give the plaintiff $4 per 1,000 feet for his raft of timber when inspected and measured. The timber was impounded, to secure it against the dangers of the river and to have it ready for inspection and measurement. When it was placed in the pen it was not intended to be an absolute delivery; the constructive possession was still in the vendor; there remained something to be done by the vendor, to wit, to have it inspected and measured. It is a well settled rule of law that the vendee's title to the property is not complete by force of a contract of sale if anything remain to be done on the part of the seller to ascertain the price, quantity, or individuality of the goods before delivery; thus if a portion of a larger quantity be sold and cannot be ascertained without weighing or measuring, or other act separating and distinguishing it from the rest, the purchaser has no title till his portion has been set apart. Burk v. Davies, 2 Maul. and S., 397; Austin v.Craner, 4 Taunton, 644; White v. Wilks, 5 Taunton, 176; Simmons v. Swift, 12 Eng., C. L., 388. Judge Kent says it is a fundamental principle, pervading everywhere the doctrine of the sales of chattels, that if the goods be sold by number, weight, or measure, the sale is incomplete, and the risk continues with the seller until the specific property be separated and identified. 2 Kent Com., 496.

We are of the opinion that the charge of the judge below was correct, and that the judgment must be.

PER CURIAM. Affirmed.

Cited: Waldo v. Belcher, 33 N.C. 612; Morgan v. Perkins, 46 N.C. 172;Wittkowsky v. Wasson, 71 N.C. 456; Lumber Co., v. Wilcox, 105 N.C. 39;Heiser v. Mears, 120 N.C. 445; Elliott v. R. R., 155 N.C. 238.

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