Mitchell v. Weiner

The court instructed the jury that upon the execution of the writing of October 16th, 1917, the property in the No. 1 potatoes contained in the plaintiff's crop passed from the plaintiff to the defendant. This fundamental instruction, followed as it was by others touching the responsibility thereafter for the care and condition of the potatoes which logically flowed from it, was one which approached very nearly to a direction of a verdict for the plaintiff for some amount. The defendant complains of it as erroneous. The instruction given necessarily implies that the court interpreted the writing as evidencing the intent of the parties to conclude a present, executed sale, as distinguished from a contract to sell. Conceding, for present purposes, that its by no means unambiguous language should have that construction, there remains another factor in the situation whose significance the court evidently overlooked. The plaintiff offered evidence to prove, and the defendant, as far as appears, none to disprove, that at the time the writing was signed the plaintiff's crop of potatoes, amounting to about 3,000 bushels, had not been sorted or graded, and that those of No. 1 grade, being about two thirds of the whole, were commingled with those of different grades in an indiscriminate mass. Both selection and separation were, therefore, necessary before the identity of the particular potatoes in which the property was to pass to the defendant under the writing could be established. Until that selection and separation should be made, the potatoes coming under the contract were unascertained, and the general property in them could not pass until they were ascertained and their identity determined. That involved a selection in accordance with the specification and requirements of the contract, and a separation of those selected from those of other grades with which they were commingled. Section 4683 of the General Statutes is specific as to this requirement of a consummated present sale passing property in the goods. It is there expressly provided that "where there is a contract to sell unascertained goods, no property in the goods is transferred to the buyer unless and until the goods are ascertained." While this section had its origin in the Sales Act, it does not lead us to a result different from that which our law antedating it would have reached.Chapman v. Shepard, 39 Conn. 413, 420; 1 Mechem on Sales, § 697 et seq.; Elliott's Connecticut Sales Act, 275.

The record states that the plaintiff offered evidence to prove that subsequent to the transaction of October 16th the plaintiff selected and separated the No. 1 potatoes from the others, and that those so selected were thereafter kept apart from the balance of the crop, and for the defendant.

It is certain that the property in specific potatoes did not pass to the defendant until such selection and separation was made, if it should be found that they ever were made. Whether or not it then passed might well be a question whose answer was dependent upon the findings of the jury upon such pertinent matters, for instance, as the character of the plaintiff's sorting, or the conduct of the parties in respect to those sorted out as No. 1. Clearly the defendant would not be obligated to accept as No. 1 potatoes, within the specifications of the contract, those of an inferior grade, for no other reason than that the plaintiff had chosen to place them in the No. 1 pile; and if the plaintiff's manner of selection had resulted in the formation of an alleged No. 1 group in which those belonging to other grades appeared in substantial and unreasonable numbers, the question might then become a pertinent one whether there had been an ascertainment of specific potatoes so as to accomplish a transfer of the property in any of them.

If, however, the property in ascertained potatoes should be found to have passed at some time, there well might be material questions of fact involved in the measurement of the plaintiff's damage arising out of conditions operating during the period between the date of the contract and that on which the title passed. The court's instructions, that the property in the potatoes passed on October 16th, 1917, and that, therefore, the defendant was thereafter responsible for their care and assumed all risk of their deterioration, took all possible questions of fact thus indicated away from the jury and restricted the field of the defendant's defense to exceedingly narrow limits. They, in effect, closed the door to all inquiries by the jury save only as to the amount of No. 1 potatoes the plaintiff had ready for delivery, and the loss he sustained by reason of their nonacceptance.

There is error, the verdict is set aside and a new trial ordered.

In this opinion the other judges concurred.