Brock v. McCaffrey

Opinion by

Reeder, J.,

The plaintiffs are wholesale grocers, importers, among other things of French table delicacies — oils and olives. They obtained from the defendants a contract for one hundred cases of olive oil. Twenty-five cases were shipped and delivered to the defendants, for which they paid. Seventy-five cases were never actually delivered to the defendants, and never paid for by them. This suit is brought to recover for those seventy-five cases which were never actually received by the defendants, and which the plaintiffs claim were set apart to their order, and never paid for, the amount of the claim being $372.

The goods were to be packed in France by Talbot Brothers, of Bordeaux, France, and were to be shipped in 25-case lots, in reasonable time, as ordered by the defendants. They were packed in bottles, with the name of “ McCaffrey & Sons ” blown in the glass. At the time of the trial, they were still at Bordeaux in the possession of Talbot Brothers, and had never been shipped to the plaintiffs, by whom they were sold to the defendants, but are held by Talbot Brothers, to be shipped whenever ordered to do so by the plaintiffs, the firm of J. W. Brown.

Was this such constructive delivery of the goods as would ¡entitle the plaintiffs to recover in this action ? There is'no principle of law more thoroughly settled than that, in all executory contracts of sale, title does not pass until delivery. If the goods contracted for were not then in existence, or not yet manufactured, or not yet selected out of a lot of similar articles, then the subject-matter of the contract is undefined, and remains so until there is some setting apart of the goods to the vendees’ order, as in the absence of actual delivery will constitute a legal delivery to them. This contract was not a contract to which Talbot Brothers were ever a party. It was a contract on the part of the plaintiffs to sell to the defendants an article which they did not have, which they never yet have had, and yet which they seek to recover for because of a setting apart by a third party (with whom the defendants had no contract) to the plaintiffs’ order.

There is no case to be found in the books which will make this a constructive delivery of the goods to the vendees so as to entitle the vendors to recover their value. Unless this property passed in some way from the plaintiffs to the defendants, there could be no recovery in this action. Talbot Brothers were no party to this sale. The contract of sale as testified to was between the plaintiffs and the defendants. The only evidence in this case discloses that-the goods may have been set apart to the order of the plaintiffs. There is no evidence that they were set apart to the defendants so as to warrant the submission of that fact to the jury by the court below.

The plaintiffs might be entitled to recover from the defendants upon this state of facts for whatever injury had been sustained by them by reason of the defendants’ failure to comply with the contract of sale and their refusal to receive the oil. As the pleadings were not printed in the paper-books submitted to us, we are not prepared to say whether they were entitled to so recover in this case or not. They are certainly not entitled to recover the full amount of the value of the oil upon the theory upon which the case was tried and submitted to the jury in the court below.

The first, second, third and fourth assignments of error inust, therefore, be sustained. Judgment reversed and a venire facias de novo awarded.