Radloff v. Bragmus ( 1943 )

The written memorandum is, to say the least, rather incomplete. It does not specify or identify the particular turkeys sold. True, it specifies the quantity and quality of the turkeys sold, but that is entirely different from specifying the particular turkeys which were to be the subject matter of the sale. Nor is there any other identification thereof. The memorandum does not show where the turkeys were, much less that they were the flock which plaintiff had on his farm. It would be impossible to identify the turkeys sold by the terms of the memorandum. It contemplated that defendants should first inspect the turkeys as to quality and that they should not be the subject matter of the sale unless they were of the quality specified in the memorandum. For that reason, the particular turkeys which were the subject of sale under the contract depended on defendants' determination of quality at the time of removal, an act to be performed in the future. Of course, title may pass where there is a sale of specific goods, although the price is to be paid and delivery is to be made in the future. This evidently is the theory of the majority opinion. I find it difficult to find that in the instant case there was a sale of specific turkeys. This case is governed by E. L. Welch Co. v. Lahart Elev. Co.122 Minn. 432, 437, 142 N.W. 828, 830, where we said:

"This was not a sale of specific goods. It was a sale of goods not specified at the time the contract was made. The rules as to sale of specified goods do not fully apply, but they must be borne in mind, for the executory contract is converted into a complete bargain and sale by specifying the goods to which the contract is to attach, or, in legal phrase, by the appropriation of specific goods to the contract. The sole element deficient in a perfect sale is thus supplied. The contract has been made in two successive stages, instead of being completed at one time; but it is none the less one contract, namely, a bargain and sale of goods. Benjamin, Sales (7th Am. ed.) § 358; Benjamin, Sales (5th Eng. ed.) 341. In such case the title passes at the time the goods are ``appropriated' to the contract. Fishback v. G. W. Van Dusen Co. [33 Minn. 111, 22 N.W. 244] supra; Jones v. Schneider,22 Minn. 279; that is, when the parties do something which signifies an intention that the title shall pass. To constitute an appropriation, the goods must be identified and they must be applied irrevocably to the contract. It is not always easy to determine, in a given case, whether they have been so applied. No particular words or acts are required. The intent of the parties governs."

On the whole record, it seems to me that all we should hold is that whether plaintiff sold his entire flock to defendants and whether the quantities and qualities specified in the memorandum were mere approximations concerning the turkeys sold were fact questions. But we should not hold that the memorandum forecloses defendants on any question. If in fact defendants agreed to purchase turkeys of the specified number and quality to be selected by them from a flock of a larger number, title did not pass under the decision cited.