Fuller v. Bean , 34 N.H. 290 ( 1857 )

Bell, J.^*

The court charged the jury that if they believed the testimony of Fuller, they would find that the sale took place at Concord, and was made to Fuller. The question then is, whether Fuller’s testimony, if credited, proved a sale complete from Felton to him at Concord, so that the property of the goods then passed. If so, the charge was right; but if the testimony only tends to prove such sale, as a matter of inference from facts and circumstances to be weighed by the jury, and in relation to which different persons might reasonably arrive at different results, the evidence should have been submitted to the jury. Where the facts are proved, and are not controverted, it is a question of law whether they show a sale. Handlette v. Tallman, 14 Me. (2 Shep.) 403; Burrows v. Stebbins, 26 Vt. (3 Dean.) 659. But where material facts are left in doubt, the question is to be decided by the jury under suitable instructions as to the law. Riddle v. Varnum, 20 Pick. 283; George v. Stubbs, 26 Me. (13 Shep.) 250; Draper v. Jones, 11 Barb. 269; Smith v. Dennie, 6 Pick. 266; Bishop v. Shillito, 2 B & A. 329, n.

If a sale is not complete, if anything remains to be done, as between buyer and seller before the goods are to be delivered, a present right of property does not attach in the buyer. If the goods are sold by number, weight, or measure, the sale is prima fade not complete till their quantity is ascertained, and if they are mixed with others, not until they are separated and designated. Warren v. Buckminster, 4 Foster 336, and the authorities there cited. The cases here enumerated are but examples of incomplete sales ; and there are many other cases, where, as there is the same reason,-the same rule of law applies. The quality of the articles sold may be left to be ascertained, as the flavor of wines, (an example put in the (Digest, D. 188, 6, 4, 5, 6.) Hun. ad Pand.,pt. 3, sec. 304,) the proof of spirits, or the merchantable quality of fish. Outwater v. Bodge, 7 Cowen 87. If it is agreed that a writing be made, as if notes are to be made satisfactory to the seller — Draper v. Jones, 11 Barb. 263 ; or if the price is to be secured by notes indorsed by particular persons — Keller v. Field, 1 Paige 352; Barrett v. Pritchard, 2 Pick. 1512; Bishop v. Shillito, 2 B. & A. 329, n; the sale is incomplete until the writing is signed, as it is in conditional sales until the condition is performed. Km. ad Pand., pt. 3, sec. 303. The principle that if any condition precedent is not performed or waived, the sale is not complete, is settled at common law. 2 Kent. Com. 497; Alexander v. Gardner, 1 Bing. 671; Hanson v. Meyer, 6 East 614; Barrett v. Pritchard, 2 Pick. 512; Maxwell v. Briggs, 17 Vt. 176; Luey v. Bundy, 9 N. H. 298; Whitwell v. Vincent, 4 Pick. 449; Blackb. on Sales 167; Com. Dig., Condition, B. 13. Where, by the terms of the contract, the delivery to the vendee is to be at another place, to which the vendor is to transport the articles at his own expense, the title does not pass till delivery. Evans v. Harris, 19 Barb. 427.

In some of the cases we find at common law the language used is capable of being understood as importing that if an act remains to be done between the parties, it must be an act to be done by the seller, and one necessary to designate and identify the goods to be sold, and not an act to be done by the buyer, or merely to ascertain the price to be paid, in order to render the sale imperfect and to prevent the property from passing. Tarling v. Baxter, 6 B. & C. 360; Whitehouse v. Frost, 12 East 613; Hanson v. Meyer, 6 East 614; Rugg v. Mineu, 11 East 209; Simmons v. Swift, 5 B. & C. 857; Wallace v. Breeds, 13 East 522; Macomber v. Parker, 13 Pick. 183.

But we think there is no such limitation of the rule, and that it is indifferent whether the act to be done to render the sale complete, is to be done by the buyer, or by the seller, or by a thii'd person ; and that it is equally indifferent whether it is to be done to ascertain the goods to be sold by their designation or measurement, or their quality, by the buyer, or the public inspector ; 7 Cow. 87 ; or merely to ascertain the price to be paid by the appraisal of a third person, or by counting, weighing, or the like ; or to do any other act necessary to enable the property to pass in conformity to the agreement, such as might be the payment of duties on goods imported, or their transportation to a different place.

As it regards the price, a material point in this case, the rule is distinctly laid down in the civil law. Thus Huneceius says, (ad Pand., lib. 6, sec. 302,) the risk and profit of the property does not pass until it appears what is sold, its quality, quantity, and price ; and in the Digest (18, 6, 8,) it is said, si id quod venierit appareat, quid, quale, quantum sit, et premium et pure veniit perfecta est emptio ; and to the same point is Pothier (de Pinte,) p. 4, sec. 309.

This rule is thus laid down in Rapelye v. Mackie, 6 Cow. 253: “ The principle that runs through all the cases is, that when something remains to be done, as between buyer and seller, or for the purpose of ascertaining either the quantity or price, there is no delivery.” To the same point is the case of Outwater v. Dodge, 7 Cowen 87, and Macomber v. Parker, 13 Pick. 183. Brown on Sale, 44, is there quoted to the same point: “ Where anything remains to be done to the goods, for the purpose of ascertaining the price, as by measuring, weighing, or testing the goods, the performance of those things shall be a condition precedent to the transfer of the property, although the individual goods be ascertained, and they are in the state in which they ought to be accepted.” Blackb. on Sale 152.

With this view agree many cases where the numbering, weighing and measuring required to make the sale effectual, were not necessary to identify the articles sold, but merely to ascertain the price. Simmons v. Swift, 6 B. & C. 857; Hanson v. Meyer, 6 East 614; Tagury v. Furnell, 2 Camp. 240; Logan v. LeMesurier, 6 Moor P. C. Cases 110; Chitt. Con. 112.

Though by the general rule of law the sale is not complete if any thing remains to be done between the parties, yet they may agree, either expressly or tacitly, to change this, and that the title to the property shall pass at once. Conditio quce initio contractus dicta est, postea alia pactione immutari potest. Dig. 18, 1, 6. Alexander v. Gardner, 1 Bing. 671; 2 Kent. Com. 496; Blackb. on Sale 160. Thus, though it is implied that a sale is for ready money unless otherwise agreed, yet the condition to pay immediately may be waived, and the goods at once passed to the buyer. 2 Kent. Com. 496; Schindler v. Houston, 1 Denio 51; Mixer v. Cook, 31 Me. (1 Red.,) 340; Blackb. Sale 147; writings may be agreed to be made, but this stipulation may be changed or waived. Draper v. Jones, 11 Barb. 209. Measures to ascertain quantity or price may be agreed on, but tacitly waived, or expressly postponed, or dispensed with. Macomher v. Parker, 13 Pick. 183.

In the language of Lord Brougham, (Logan v. LeMesurier, 6 Moor P. C. Cases 116 : ) “ To constitute a sale which shall immediately pass the property, it is necessary that the thing sold should be certain, should be ascertained in the first instance, and that there should be a price either ascertained or ascertainable. But the parties may buy or sell a given thing, nothing remaining to be done for ascertaining the specific thing itself, but the price to be afterwards ascertained in tbe manner fixed by tbe contract of sale, or upon a quantum valeat; or they may agree that the sale shall be complete and the property pass in the specific thing, chattel, or other goods, although the delivery of possession is postponed, and although nothing shall remain to be done by the seller before the delivery; or they may agree that nothing remains to be done for ascertaining the thing sold, yet that the sale shall not be complete and the property shall not pass, till something is done to ascertain the amount of the price. The question must always be what was the intention of the parties in this respect, and that is of course to be collected from the terms of the contract. If those terms do not show an intention of immediately passing the property, until something is done by the seller before delivery of possession, then the sale cannot be deemed perfected, and the property does not pass until that thing is done.” Blackb. Sales 121, 147.

The rule may therefore be laid down as in Stone v. Peacock, 35 Me. (5 Red.) 388. Where some act remains to be done in relation to the property which is the subject of sale, and there is no evidence to show any intention of the parties to make an absolute and complete sale, the performance of such act is a pre-requisite to a consummation of the contract, and until it is performed the property does not pass to the vendee. Riddle v. Varnum, 20 Pick. 280; Draper v. Jones, 11 Barb. 263; Keller v. Field, 1 Paige 312; Whitwell v. Vincent, 4 Pick. 449; Blackb. Sale 120.

There has been an inclination in some cases to regard a delivery as absolute when no condition is insisted on, and to consider such a delivery as a waiver of the condition. Supin v. Marie, 6 Wend. 77; Chapman v. Lathrop, 6 Cowen 110; McCarty v. Vickery, 12 Johns. 348; Draper v. Jones, 11 Barb. 263.

But this we think must depend on the intent of the parties at the time, to be ascertained from all their language and conduct, and not from the single fact of the delivery. Furniss v. Hone, 8 Wend. 256; Smith v. Dennie, 6 Pick. 266; Smith v. Lynes, 1 Seld. 44. The condition for security is not necessarily waived by mere delivery without exacting performance, if the delivery is conditional. Hussey v. Thornton, 4 Mass. 407; and an express declaration is not necessary that the delivery is conditional. 8 Wend. 261; Whitwell v. Vincent, 4 Pick. 449; Keeler v. Freeman, 1 Paige 312; 4 Mass. 405; Mason v. Sickharrow, 1 H. B. 362; Palmer v. Hand, 13 Johns. 434; Story Con. 508.

A mere assumption of ownership or control by the purchaser will not be sufficient evidence of a delivery, without proof of consent or acquiescence. Even then it affords merely a presumption of delivery, which may be repelled by evidence that the title remained in the vendor. Tompkins v. Haile, 3 Wend. 406; Williams v. Allen, 10 Hump. 337.

Upon comparing the facts of the case with the principles thus stated, it appears that the price of the goods sold was not agreed upon by the parties. The bargain was that Neale should appraise the goods, and that Puller should pay for them at the rate of seventy-five per cent, of the appraisal, one half by his own note, and the other half by J. Gr. Puller’s note and cash.

Now a price is essential to a contract of sale. Nulla emptio sine pretio esse potest; though if the price can be made certain it is sufficient. Just. Inst. 3, 23; 4 Kent’s Com. 468, 477; Poth de Vente, p. 1, sec. 1, p. 3. When the parties then separated, and Felton returned to Boston, the sale was incomplete. It was at that time contingent, whether Neal would make an appraisal, without which there would be no sale. Sin autem Ule qui nominabas est vel noluerit vel non potuerit pretium dejinire tune pro nihilo esse venditionem. Inst. 3, 28; Poth de Vente, pt. 1, art. 2, sec. 2. That appraisal remained to be made. It was an act to be done before the property could pass to Fuller, unless it could be fairly inferred from the evidence relative to the agreement that it was the understanding of the parties that the property should nevertheless pass at once.

By the contract the goods were to be paid for by notes and money, as the parties had agreed, and the delivery of the notes, ■which could not be made till after the appraisal, should be regarded as a condition precedent, to be performed before the sale would be complete, unless some evidence appeared from which it might be justly inferred that credit was given for the delivery of these notes, or that the understanding of the parties was that the notes should be given at a future day.

On both these grounds the charge seems to us to have been incorrect, because the testimony of Fuller did not necessarily prove a sale complete. It contained facts and circumstances, from which a jury might have inferred a complete and perfect sale ; because, notwithstanding the uncertainty as to the price, and the condition as to the security to be given for it, the jury might have found that it was the understanding of the parties that credit was given as to these things, the conditions were to be waived, so that the property should pass at once.

The jury might infer, from the meagre account of what was said and done by the parties, that the sale was complete at Concord, that Walker might take the goods at once, and that Felton was not to retain an interest in the goods till he received the notes agreed for, but was to rely on Fuller’s engagement to furnish the notes, when their amount should be ascertained. On the other hand, the jury might believe, especially considering the illegality of such contracts in this State, that Felton did not intend to part with his merchandise till he got his pay, and that he neither delivered the goods, nor consented to their delivery, till he received the notes agreed on at Boston, and made a bill to Walker.

In our opinion the question as to this matter should have been submitted to the jury, and on this ground there must be a new trial.

The first instruction requested to be given to the jury was not such as the court could properly give, and the others, though they seem correct, were immaterial.

* Pebley, C, J., and Fowleb, J., having been counsel, do not sit.