Penley v. Littlefield & Sons Co.

Action of assumpsit for the price of a hog alleged to have been sold and delivered. The plaintiff recovered a verdict. The case comes to this court on the defendant’s motion. The plaintiff’s agent brought a live hog and left it at the defendant’s slaughter house in Auburn. During the following night or day the hog died, without the fault of either party.

Frank A. Morey, for plaintiff. Ralph W. Crockett, for defendant.

The plaintiff claims that the animal was sold and delivered to the defendant to be paid for at the rate of twenty cents per pound dressed weight. The defendant’s contention is that the hog was left at its slaughter house after some negotiations about a sale but that there was no sale. The defendant says it was expressly agreed that the hog should be left at the plaintiff’s risk. The jury accepted the plaintiff’s version.

If a sale and purchase were intended by the parties and the hog delivered in pursuance of such intent, it matters not that the determination of the amount to be paid was deferred until after the slaughtering and weighing. The rule as stated in Benjamin on Sales, quoted by the defendant’s counsel, is not decisive. More nearly in point are the many authorities cited in Bennett’s Notes to the same work, sustaining the proposition that “where the whole thing sold is delivered it is reasonable to expect that the vendee will do the weighing, measuring, etc., and the title may pass even before he has done it.” Benjamin on Sales, 7 Ed., Page 297- Whether the transaction wherein personal property is delivered is a completed sale or a mere bailment is a question of fact. In this case the jury have found this fact against the defendant. The verdict is not manifestly wrong. Motion overruled.