Opinion
06-04-1828
Archibald Pleasants v. William G. Pendleton. [*]
The Attorney General and Stanard for the Appellant. Leigh, and Nicholas, for the Appellee.
[Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]
This was an action on the Case, brought by William G. Pendleton, in the Superior Court of Law for Henrico County, against Ralston & Pleasants. The Declaration contained various counts. The first count demanded 416 dollars 50 cents, on account of one hundred and nineteen barrels of fine flour, sold Defendants at that price, and alleged an assumpsit to pay that sum for the flour. The second count was for the same quantity of flour, and charged an assumpsit to pay so much money as the flour was reasonably worth, with an averment that it was reasonably worth the said sum of 416 dollars 50 cents. The third count was for money had and received by Defendants, to Plaintiff's use. The fourth count charged that the Defendants were indebted to the Plaintiff, in the sum of 416 dollars 50 cents, by a certain check drawn by them, on the Bank of Virginia, and delivered by them to the Plaintiff, in consideration of one hundred and nineteen barrels of fine flour, before that time sold and delivered to them, by Plaintiff, at their special instance and request, which said check so by them drawn and delivered to the Plaintiff, was in fact before presentation for payment, destroyed by accidental fire, and the amount thereof, nor any part of it, has been received by Plaintiff, nor have the said Defendants renewed the said check to Plaintiff, and avers notice of the destruction of said check, on the part of said Defendants. To this Declaration, the Defendant Archibald Pleasants, pleaded non-assumpsit, (the other partner, Ralston, having been returned no inhabitant, and the suit abated as to him,) to which Plaintiff replied generally. The Jury found a verdict for Plaintiff, and assessed his damages to 416 dollars 50 cents, with interest from 20th March, 1820, until paid; and Judgment was entered accordingly, against Archibald Pleasants.
The questions in this case, arise out of a Bill of Exceptions taken at the trial, by the Defendants, to certain opinions delivered by the Court.
That Bill of Exceptions is as follows, viz:
" Memorandum. That on the trial of the issue joined in this cause, evidence was introduced for the purpose of proving that on the 20th of March, 1820, the Plaintiff sold to the Defendant, one of the mercantile firm of Ralston & Pleasants, one hundred and forty-one barrels of fine flour, of the Richmond inspection, with certain specific mill brands on them, agreeably to a list containing the number of each brand, exhibited to the Defendant, at $ 3 50 per barrel, then stored in the warehouse of J. & J. Fisher, jr., in said city, which list is in the hand-writing of the Plaintiff, in the words and figures following, to wit: " Pedlar, 62, very good; Rose's, 26; Bent Creek, 7; Fredonian, 10; Rocky Creek, 18; D. S. Garland, 13; Rockford, 5; 141 barrels, $ 3 50, $ 493 50 cents." That the Plaintiff at the same time received from the Defendant, a check on the Virginia Bank, for $ 493 50 cents, the whole amount of the price of the said one hundred and forty-one barrels of fine flour, and gave the Defendant an order on the warehouse-keepers for the flour; that this sale was effected before two o'clock of the said day, though on this point there was a variance in the evidence; a witness stating that he believed that it was at a later period: that in the course of the same day, and in the evening, the Plaintiff finding that he had mistaken the number of barrels of the fine flour which he had stored in the said warehouse, sent to the Defendants a corrected list, reducing the number of barrels of fine flour to one hundred and nineteen; which list, as corrected, is in the words and figures following, to wit: " Pedlar, 62, very good; Rose'sonly; Bent Creek, 7; Fredonian, 10; Rocky Mills, 20, (instead of 18; ) D. S. Garland, 13; Rocky Ford, 5:" That thereupon the former order was given up by the Defendant, and the check by the Plaintiff: that a new bargain was then made, by which the one hundred and nineteen barrels of fine flour, of certain specified mill brands, then stored in the warehouse of the said J. & J. Fisher, jr., were sold by the Plaintiff, to the Defendant, as one of the firm of Ralston & Pleasants, merchants in Richmond: that the Plaintiff gave the Defendant an order on the said J. & J. Fisher, jr., for the delivery of the said one hundred and nineteen barrels of fine flour, by specific numbers and brands, which order is in the words and figures following, to wit: " Messrs. John & J. Fisher, jr., Gentlemen, Deliver to Messrs. Ralston & Pleasants, one hundred and nineteen barrels of Richmond fine flour, which are stored with you, of the following brands, viz: Pedlar, 62 barrels; Rosebarrels; Bent Creek, 7 barrels; Fredonian, 10 barrels; Rocky Creek, 20 barrels; D. S. Garland, 13 barrels; Rockford, 5 barrels. Yr. mo. Wm. G. Pendleton. Richmond, 20th March, 1820:" That the Plaintiff rendered to the Defendant a bill for the same, amounting to 416 dollars 50 cents, passed his receipt for the amount thereof, and received from the Defendant a check on the Bank of Virginia, for the said sum of 416 dollars 50 cents, being the stipulated price for the said one hundred and nineteen barrels of fine flour: that it is the usage of the Banks in the said city, well known to all the merchants and dealers with the said Banks, in said city, and elsewhere, not to pay any check after three o'clock in the evening: that this last bargain was closed between two and four o'clock in the evening of that day, though there was a variance in the evidence on that point; one witness stating that to be the time, according to his belief, and another that he thought it was between three and five: that at the time of the said sale, the said Plaintiff had also in store in the said warehouse, about three hundred barrels of superfine flour, and that there was also stored therein, belonging to other persons, a number of other barrels of flour, (between two and three thousand,) of different brands, and of different qualities, though there was no flour there other than the Plaintiff's, of the same mill brands with the said one hundred and nineteen: that at the time the said order was given, there was a considerable fall of rain, and that the rain continued from thence till night: that in fact, as the store-keeper testified, the Plaintiff had at the time of the sale aforesaid, one hundred and twenty-three barrels of fine flour, of the brands specified, stored as above mentioned, viz: two more of Rose's, and two more of Pedlar's brand, than were specified in the said corrected list, and that with this exception, the fine flour of the Plaintiff on hand, and that sold by him, corresponded in respect to the brands on them, and the number of barrels of each brand: that although there is less difference in the market as to price, between the different mill brands of fine, than of superfine flour, yet there is a difference; but that between barrels of fine flour, of the same mill brand, there is no difference whatever: that the said one hundred and nineteen barrels had not, at the time of the said sale, nor at the time of the fire hereafter mentioned, been separated from the said one hundred and twenty-three barrels, nor from the larger parcels stored in the said warehouse: that on the morning of the 21st of March, 1820, before day-break, the said warehouse accidentally caught fire, and it, together with the said flour, was entirely consumed, and that the check aforesaid, for 416 dollars 50 cents, owned by said Plaintiff, and being in his counting room, which was a part of the same building, was consumed also: that the Defendant, about eight o'clock of the morning of the 21st of March, whilst the fire was yet raging, demanded of the said J. & J. Fisher, jr., a delivery of the said one hundred and nineteen barrels of flour, according to the order therefor, which he then produced, but the order was not complied with, it having become by the act of God, impossible: that the Defendant, on the same morning of the 21st of March, directed the Cashier of the said Bank of Virginia not to pay the said check for 416 dollars 50 cents.
" That it was, and is, the usage of the store-house-keepers in the city of Richmond, well known to the merchants thereof, (when the transaction aforesaid took place, and the said flour was stored,) to charge the vendor of the flour with the storage, and to deliver it to his order when called for: that it was not usual for the storekeepers to deliver flour during a rain, nor in the evening after dark, and that the practice was well known to the merchants: But the warehouse-keeper said, in giving his evidence that if the flour had been called for, on that evening, he would have delivered it, notwithstanding the rain, and that he thought it could have been delivered in an hour: that the storage due on said flour, had not, at the time of said fire, been paid: but the warehouse-keeper said, in his evidence, that he would have delivered any flour of the Plaintiff's to his order, on demand, notwithstanding the storage had not been paid, holding him responsible for it, and charging him with it: That it sometimes happens, that the flour, when about to be delivered out, requires coopering, in which case, according to usage in said city, well known to the merchants thereof, the coopering is done by the storer, at the expense of the vendor; that sometimes out of a hundred barrels, no cooperage is required; sometimes forty out of a hundred barrels require it, and that the average expense of cooperage is two cents a barrel, or $ 2 for every hundred barrels.
" That it was, and is, in the common course of trade in the said city of Richmond, for flour to be sold by draft or order on the store-keeper, and to pass by that mode of transfer, through many different hands, without actual delivery.
" The evidence on both sides, having been closed, the Defendant by his Counsel, moved the Court to instruct the Jury, that if, in their opinion, the engagement of the Plaintiff was to sell and deliver to the Defendant one hundred and nineteen barrels of fine flour, (as contra-distinguished from superfine flour or cross-middlings) of which so many barrels were to be of one mill brand, and so many of others, (as in the corrected list above mentioned,) that this constituted a special contract, and that the Plaintiff on such contract could not recover under the Declaration filed in this cause. But, the Court overruled the motion, refusing to give such instruction. To which opinion of the Court the said Defendant excepted.
" And thereupon the Counsel for the Plaintiff and for the Defendant, argued the law, as well as the facts of the case, before the Jury, and concurred in asking the Court to instruct the Jury on the Law; wherefore the Court did instruct the Jury, that if they were of opinion that the evidence aforesaid, adduced by Plaintiff and Defendant, is true, and proves every fact which it purports to prove, and that the only fact of said evidence, in which there is a variance, (viz: that respecting the time of the evening in which the sale aforesaid was made,) was in favor of the Defendant, (that is to say, if they should be of opinion that the sale was made as late in the evening as five o'clock,) that the Plaintiff had a right to recover in this action; (and in support of this instruction the Court assigned its reason at large, but it is deemed unnecessary, and improper, to place that argument on this paper; ) to which instruction of the Court, the Defendant by his Counsel excepted. The Defendant's Counsel then moved the Court to instruct the Jury, that if, in their opinion, the usage of trade in the city aforesaid, or the contract between the parties, required that the flour, the subject of the said contract, should be, when delivered, in merchantable order, it was incumbent on said Plaintiff to prove to their satisfaction, that the flour aforesaid was merchantable; but the Court declined giving such instructions, 1st. Because the said proposition is partly abstract, not growing out of the evidence, the whole of which is herein before set down, and because, so far as it is relevant to the case, the Court has already given its opinion upon it. 2d. Because after the Court had given its opinion, on the whole Law of the case, upon motion of the Plaintiff's Counsel, with the concurrence of the Defendant's Counsel, and after an argument from both sides, before the Jury, on the law and the evidence, it is deemed inadmissible and irregular, to receive detailed motions, for instructions to the Jury. And therefore overruled the motion. To which several opinions of the Court, the Defendant by his Counsel excepted."
From the Judgment in this case, the Defendant in the Superior Court, appealed to the Court of Appeals.
Judgment affirmed.
The Attorney General and Stanard for the Appellant.
Leigh, and Nicholas, for the Appellee.
JUDGE CARR. JUDGE CABELL. The PRESIDENT.
OPINION
The Judges delivered their opinions. [*]
JUDGE CARR.
The Appellee sued the Appellant in Assumpsit, on a contract for so much flour sold. The Declaration had several counts, some special, some general. The Jury found a general verdict for the Plaintiff for $ 416 50, on which Judgment was rendered. On a subsequent day of the Term, the Counsel for the Defendant, with the consent of the opposing Counsel, tendered a Bill of Exceptions to sundry opinions of the Court, given on the trial. The Bill sets out at large what the evidence was intended to prove, and on this statement, several motions for instruction to the Jury are predicated. But one of them was the subject of discussion at the Bar, and to that I shall confine my remarks. The Court instructed the Jury, " that if they believed that the evidence adduced was true, and proved every fact which it purported to prove, and that the sale took place at five o'clock in the evening, (the only fact as to which there was any variance,) the Plaintiff had a right to recover in this action." To enable us to judge of the correctness of this instruction, we must look into the evidence first, and then to the law of the case.
On the 20th March, 1820, the Appellee sold to the Appellant one hundred and forty-one barrels of fine flour, with certain mill brands on them, according to a list stating the number of barrels of each brand. The price was $ 3 50 cents per barrel. The flour was stored in the warehouse of J. & J. Fisher. The Plaintiff received from the Defendant a check on the Virginia Bank for the full amount of the price, and executed and delivered to the Defendant an order for the flour on the warehouse man. In the evening of the same day, the Plaintiff finding that he had mistaken the number of barrels, sent a corrected list to the Defendant, reducing the number to one hundred and nineteen barrels. Upon this, the order and check were given up, and a new contract made, by which the one hundred and nineteen barrels of flour, according to the list, were sold by the Plaintiff to the Defendant for the same price, amounting to $ 416 50 cents. For this sum the Defendant gave the Plaintiff a check on the Virginia Bank, and the Plaintiff gave a receipt in full, and an order for the flour. The bill of parcels, (describing the flour very minutely,) and the receipt, are set out at large. This last agreement was made, (to say the latest,) about five o'clock in the evening. It is the usage of the Banks of Richmond, well known to merchants and others dealing with them, not to pay checks after 3 o'clock, P. M. At the time of the sale, the Plaintiff had in the same store-house about three hundred barrels superfine flour, and there were there also between two and three thousand barrels, belonging to others, of different qualities and brands, but none other but the Plaintiff's with the same brands as the one hundred and nineteen barrels. At the time of giving the order for the flour, there was a considerable fall of rain, which continued till night. At the time of the sale the Plaintiff had in fact four more barrels of fine flour than he sold to the Defendant in the same house, and of the same brands, to wit: two of Rose's and two of Pedlar's brand. Except this, the list corresponded exactly with the fine flour which the Plaintiff had in Fishers' store-house, both in number and brands. Between barrels of fine flour of the same brand, there is no difference in price. On the morning of the 21st March, the warehouse accidently took fire, and was burnt, together with the check for the price of the flour, and the flour itself; the one hundred and nineteen barrels having never been separated from the four barrels of the Plaintiff, nor the larger parcels belonging to others. The Defendant, on the same morning directed the Cashier not to pay the $ 416 50 cents. It is not the practice in Richmond for the keepers of storehouses to deliver flour in the rain, nor after dark; but, this flour, if it had been called for on that evening, would have been delivered, and it could have been done, the store-keeper said, in an hour. It sometimes happens that flour, about to be delivered, wants cooperage, in which case the usage, well known to merchants is, that the cooperage is done by the storer, at the expense of the vendor: sometimes forty barrels in one hundred will want coopering; sometimes not one. It has been, and is the usage of storers in Richmond, well known to the merchants, to charge the vendor of the flour with the storage, and to deliver it to his order whenever called for. The storer in this case would have delivered any flour of the Plaintiff's to his order, on demand, though the storage was not paid, holding him responsible, and charging him with it. It has been, and is the common course of trade in Richmond, for flour in store to be sold by draft or order on the store-keeper, and to pass, by the transfer of the order through many different hands, without actual delivery of the flour to any.
We are to consider whether, taking all these facts as proved to the satisfaction of the Jury, the Court properly instructed them, that the Plaintiff ought to recover in this action, remarking by the way, that the instruction touches no matter of fact, but matter of law solely; that it does not speak of the recovery, as to amount, or quantity, but merely as to the right: " that the Plaintiff, (if they believed the evidence) had a right to recover," so that if he have a right to recover any part of his demand, the Court was right, and it remained for the Jury to settle the amount.
The great question is, to whom did the flour belong when burnt, for the owner must bear the loss. Was the contract so complete as to pass the property? We will consider this, first, upon the general principles which regulate contracts of sale; secondly, upon the usage found, that flour passes from hand to hand, by the transfer of the order, without the actual delivery of possession.
1st. To charge on a contract of sale, and put at the risk of the vendee, a constructive delivery is enough. An actual delivery, neither in law, nor in fact, is required. It is only necessary that it be such as to pass the entire right of property. A symbolical delivery, as the key of a warehouse where the goods are deposited, will pass them to the vendee. 1 Atk. 171; 1 East. 195; 3 John. Rep. 395. So, if the contract of sale be complete, though the goods continue in the warehouse where stored at the time of sale, under an agreement to be free of storage for a certain number of days, and during that time they be burnt, the vendee must bear the loss. Phillimore v. Barry, 1 Camp. 513. So, where the vendor has no further act to do, to ascertain the quantity, quality, or price of the article sold, the vendee must bear every loss by fire, & c. though he could not withdraw the goods from the place of deposit, because the duties were not paid, the fact that they were not paid being proclaimed at the sale, and vendor being in no default for the non-payment between the sale and burning. Hinde v. Whitehouse, 7 East. 558. But if by the terms of sale, there remains anything to be done by the vendor in order to render the goods deliverable, a loss subsequent to the sale, and prior to the doing of that act, must be borne by the vendor. If, therefore, weighing be necessary to ascertain the quantity, Hansom v. Meyer, 6 East. 614; or some casks remained to be filled up, to make them of one weight, Rugg v. Minett, 11 East. 210; or the contents of bales are to be counted, Zagury v. FirnellCamp. 240; or it be the duty of the vendor to do any other act, for ascertaining the quantity, quality, or price of the article, it is for such part as is not ascertained, at his risk, though the remainder will be at that of the purchaser. See Shepley v. Davis, 5 Taunt. 617; Busk v. DavisMau. & Selw. 397, and many other cases. All these go upon the ground, that by the contract some essential act remained to be done by the vendor, as between vendor and vendee, to the completion of the contract, and whenever this is the case, the property does not pass, but remains in the vendor, and at his risk.
The doctrine of stoppage in transitu, must be cautiously applied to the case before us. It is established Law in England, that if goods be consigned to a merchant, and when they reach him he has become bankrupt, they go to his assignees, though the consignor should remain wholly unpaid, and though when he consigned them, he considered his correspondents to be in good credit. The harshness and injustice of this principle is felt, and lamented by the Judges, and they go as far as they can in favor of an unpaid vendor. Thus, in Hammond v. Anderson, 4 Bos. & P. 70, Sir J. Mansfield, Ch. J. says, " the right of stopping in transitu is a favorable right, which the Courts of Law are always disposed to assist." In Scott v. Pettit, 3 Bos. & P. 469, Lord Alvanley, who had tried the cause at N. P. says, " At the trial I could not help forming the wish, that the question, how far the bankruptcy of Beckley had operated as a countermand of his previous orders to Messrs. Wallers, should be considered by the Court. But in looking into the cases, I find that question to be completely closed in Westminster Hall, and that we therefore are bound to hold, that though a bankrupt has altogether ceased to be a trader, his warehouse continues open, for the purpose of receiving goods, and that the assignees have a right to take possession of every thing that may come into their hands, without paying a single farthing, even though the consignors of the goods are not entitled to come in under the commission." And Heath, J. says, " It is much to be lamented, that goods consigned to a bankrupt, which arrive after the act of bankruptcy, as in this case, should ever be considered a part of the bankrupt's effects. The hardship to which this rule of Law had given rise to, in particular cases, was the occasion of introducing the doctrine of stoppage in transitu." It is not strange, that in their wish to restrict, and mitigate this harsh doctrine, the Judges should sometimes decide that goods are still in transitu, when, if the question were between two equally innocent, which should bear the loss, they would, under the same circumstances, have decided that the possession was changed, and the vendee the owner. When the question of transit is decided against the unpaid vendor, we may safely take such a case as applying a fortiori to a question of mere risk.
Let us now see how these general doctrines apply to our case. Two merchants in the City of Richmond come together; the one is a seller of flour, the other a buyer. The seller exposes his bill of parcels: here I have one hundred and nineteen barrels of fine flour, lying in Fishers' warehouse: these are the particular brands, and number of each brand: my price is $ 3 50 per barrel, cash. The buyer says, I will take it. The amount is calculated, for which he gives a check on the Bank. The seller at the same time gives him a bill of parcels, an order on the warehouse man, and a receipt in full for the price of the flour. Is not this a complete, and executed contract? The money paid, and the flour delivered. That the check was made, and understood as a cash payment, none will doubt, who recollects that, since the institution of Banks, the merchants have used them as a place of deposit for their funds, and make all their money payments by checks on them. The receipt in full, too, shows that the seller at least thought that he had gotten his money. It would seem strange, if in return he did not give the flour. An actual, manual delivery of it, was, from the nature of the article, not to be expected; but fair dealing required that something equivalent should be done, and the vendee would hardly have paid his money, without getting what he considered equal to an actual delivery: he got the order, directing the warehouse man to deliver him one hundred and nineteen barrels of fine flour of specified brands. Excluding all subsequent events from our view, and looking at this contract as the parties did at the moment of making it, can we doubt for an instant, that they considered it complete; that each party had done all that he had to do with it? And the intention of the parties, we know, is of the essence of contracts. This seems to me, the common sense, practical view of the subject, and it is fully supported by the Law. A bargain struck, and payment of the purchase money, vests the property of the chattel in the vendee. 2 Black. Com. 448. This was admitted in the case of a specific chattel, as a horse; but, the principle is applicable to every case where the subject of the bargain is so designated as to be clearly distinguishable. Thus, in Hinde v. Whitehouse, Lord Ellenborough applies it to a sale of sugars at auction, which were afterwards burnt. In support of his opinion, he cites with approbation, a passage from Noy's Maxims, 88, where it is said, that " if I sell my horse for money, and the horse die in my stable between the bargain and delivery, I may have an action of debt for my money, because by the bargain, the property was in the buyer." And it will be observed, that in this case, Lord Ellenborough lays great stress on the meaning of the parties, and " what was considered between them."
Phillimore v. Barry, 1 Camp. 513. This was a sale of rum, forming part of the cargo of a Danish prize, which was lodged in the warehouse of Fector & Minet, of Dover. The terms of sale were a deposit of 25 per cent. to be paid immediately, and the remainder in thirty day; at the end of that time, purchasers to take away the goods, or afterwards to pay warehouse rent. Thirteen puncheons of this rum, consisting of several lots, were bid for, and knocked down to an agent of the Defendants, for them. Before the thirty days elapsed, the warehouse caught fire, and by means of a quantity of gunpowder lodged in them, were blown into the air. There was no evidence of the deposit being paid. The action was brought by the seller, to recover the price of the rum. The first question was upon their Statute of Frauds, the 17th section of which requires a memorandum in writing, in certain cases, in the sale of personal chattels, in this, differing from ours. Having discussed that point, Lord Ellenborough held, that the property vested absolutely in the purchasers, from the moment of the sale, and there was a verdict for the Plaintiff.
But it was contended, that the case before us falls within that class of cases, where something still remained to be done by the vendor to complete the contract, and therefore that the property in the flour did not pass, and this something, it is said, was the cooperage, and the warehouse rent, both of which were chargeable to the vendor. But it must be remembered, that that which remains to be done, must be something essential to put the articles sold, in a deliverable state, and something, too, between vendor and vendee. As to the cooperage it does not appear that any was wanting in this case; and if it was, the usage proved is, that it was done by the storer, at the vendor's expense. As to the warehouse rent, that formed no lien on the flour, for it is proved to be the usage, to charge it, (not upon the flour, but) to the vendor, and " to deliver the flour to his order when called for." Neither of these things, then, show any thing farther to be done by the vendor, nor any obstacle existing to the delivery of the flour. The vendee had only to present his order to the warehouse-man, and the flour would have been rolled out to him, without a moment's delay. The case of Austin v. Craven, 4 Taunt. 643, is not like this. That was Trover for fifty hogsheads of sugar, of a particular description, to be delivered on board a British ship. The action failed, because the Plaintiff could not prove that the Defendants (who were sugar refiners) ever had on hand the specified quantity and description of sugars sold: here it is in proof that every barrel of flour called for by the order was at the warehouse. Nor is this case like that of Busk v. DavisMau. & Selw. 397. That was a sale of ten tons of Riga flax, lying at the Defendant's wharf, at 1181. per ton: the flax was in mats, varying in quantity from three to five or six hundred weight. The quantity sold was to be ascertained by weighing by the wharfinger, and to make up ten tons might require the breaking of the flax mats. Before payment for the flax, the vendee became bankrupt, and the vendor sent an order to the Defendant, at whose wharf the flax still remained, not to deliver it. The assignees of the bankrupt brought Trover. Lord Ellenborough says, " The question in this case is, whether the property has been so ascertained as to be considered in law as effectually delivered, the order to deliver having been given to the wharfingers, and entered on their books. That would not, of itself, be sufficient, unless the flax were in a deliverable state, and if farther acts were necessary to be done by the seller to make it so. Here it appears that farther acts were necessary; for, the flax was to be weighed, and the portion of the entire bulk to be delivered, was to be ascertained; and if the weight of any number of unbroken mats was insufficient to satisfy the quantity agreed upon, it would have been necessary to break open some mats in order to make up that quantity. Therefore, it was impossible for the purchaser to say that any precise number of mats exclusively belonged to him." Observe the striking difference between that case and ours. There, the flax was put up in mats, and sold by the ton: to make up the number of tons sold, it might be necessary to break up some of the mats. Here, the flour was put up in barrels, and sold by the barrel: no further process necessary, no weighing, no barrel to be broken to make up the quantity. There, it was impossible for the buyer to say that any precise number of mats belonged to him. If he could have said so, the argument of the Chief Justice leads directly to the conclusion, that the decision would have been different. Here, the vendee could say what precise number of barrels belonged to him; his order designated number and brand, precisely.
But, I will now cite a case, which (if I mistake not strangely,) will remove the objection, that there was no such separation here, as would enable the vendee to designate any particular barrels as his property; an objection founded on the fact, that there were in the warehouse, and belonging to Pendleton, two barrels of the Rose, and two of the Pedlar brand, which were not sold with the one hundred and nineteen. The case is Jackson v. Anderson, 4 Taunt. 24. Saddler, Jackson & Co. consigned to Fielding, residing at Buenos Ayres, goods to be sold for them. He sold the goods, and sent them an account of the proceeds, calculated in dollars, and annexed to the following letter. " Gent: Annexed, I hand you an account of sales of four trunks, nett proceeds, 1,969 Spanish dollars, which amount I shall ship per the Cheerly, gun brig, Lieutenant Fullarton, who will sail direct for England, in ten or fourteen days," & c. Sometime afterwards, the Plaintiff received the following letter, brought by the ship Cheerly. " Gent: I have by this conveyance, sent to my friends, Messrs. Laycock & Co. a bill of lading for a barrel J. F. of dollars, marked -- 100, in which are P. included for you, and on your account, $ 1,969, which sum will be rendered to you by said gentlemen," & c. On the receipt of this letter, the Plaintiffs applied to Laycock & Co., and after being put off several times, were at length told, that they had transferred the bill of lading to a friend. On further enquiry, they found that the barrel of dollars, on its arrival, had been deposited in the Bank of England, and that the bill of lading, endorsed severally by Fielding, Laycock & Co., and the Defendants, had been transmitted to the Bullion Office by the Defendants, of whom the Bank had purchased the dollars, and paid them the sum of 1,0981. 13 9, being the value of $ 4,718, contained in the barrel, which sum the Defendants carried to the credit of Laycock & Co., with whom they had an account as Bankers. Upon this, the Plaintiffs demanded the $ 1,969 of the Defendants, who refused to deliver them up, and thereupon they brought Trover for them. A verdict and Judgment at Nisi Prius, were taken for the Plaintiffs for 4181. 18 9, with leave to the Defendants to move to enter a nonsuit. In support of the motion, it was urged by Shepherd and Vaughan, Sergeants, that admitting the barrel, consigned to Laycock & Co., to be the same from which the $ 1,969 were intended to be appropriated to the Plaintiffs, still there has not been any such appropriation of them, as will entitle the Plaintiffs to this form of action. The objection, they said is, that there has not been any act done in respect to the $ 1,969, claimed by the Plaintiffs to separate them from the rest, so as to enable the Plaintiffs to designate them as their own property; and when a demand was made, by the Plaintiffs, of the dollars, if the Defendant had desired them to point out which dollars were their property, they could not possibly have ascertained them, which shows that neither Trover nor Detinue will lie. This was the argument of eminent Counsel, and it will be admitted that it was put in its most imposing form. What said the Court? Its opinion was delivered by Mansfield, Ch. J. After disposing of the other objection, he remarks, " Another question has arisen from the intermixture of property. It appears that no separation was ever made from the whole quantity of $ 1,969, belonging to the Plaintiff; and an objection has been taken on that ground against the form of the action. But, we think there is no difficulty in that point. The Defendant has disposed of all the dollars: consequently, he has disposed of those which belong to the Plaintiffs; and as all are of the same value, it cannot be a question, what particular dollars were his. It is not like the case of tenants in common, who have a right to a part of every grain of corn, & c. Here, one has a right to a certain number, and the other to the rest. If a man keeps all, and has no right to a part, the action lies for that part, which he wrongfully detains." Now I ask, where is the difference with respect to separation between that case and this? If Trover could be maintained for $ 1,969, out of an undivided mass of $ 4,718, would not Trover equally lie for one hundred and nineteen barrels of flour out of one hundred and twenty-three? The dollars were not more alike than barrels of the same quality and brand. The dollars in the one case were consigned to Laycock & Co., and the bill of lading endorsed, and delivered to them: in the other case, the barrels of flour were stored with the warehouse-man. In the one case, a letter is written to the Plaintiff, which is considered as an order on the consignee for $ 1,969, out of a barrel containing $ 4,718: in the other, an order is given on the warehouse-man for one hundred and nineteen barrels of flour, of particular marks and brands, out of one hundred and twenty-three. If Trover could be maintained for the dollars, could it not equally for the flour. It was asked, suppose a part of the flour had been burnt, how would you have decided whose it was? I ask, suppose a part of the dollars had been stolen out of the barrel, whose loss would it have been? The very same difficulty is presented, yet we see that in the case of the dollars, the Court did not perplex themselves with it, but going on the great principles of justice, sustained the claim of property. Observe, too, the ground taken; " As all (the dollars) are of the same value, it cannot be a question, what particular dollars were his." In our case it is expressly in evidence, that between barrels of the same brand and quality, there is no difference in price. May we not say here then, " As all the barrels were of the same value, it cannot be a question, what particular barrels were his?" Again, the Chief Justice says, " Here, one has a right to a particular number, and the other to the rest." Did not the order in this case give the vendee a right to a particular number, one hundred and nineteen barrels? Yes; and the rest belonged to the vendor. Thus, I think I may fairly say, that leaving the custom out of the question, the case is with the Plaintiff.
But, surely, the custom puts it beyond all question. " An established usage (says Chief Justice Gibbs, in Lucas v. DorrienCom. L. Rep. 105,) constitutes the common understanding of parties in their dealings, and on the foot of that common understanding, they are supposed to contract." See also Doug. 513, what Lord Mansfield says of a custom, even one year old; and see Starkie's Evid. pt. 4th, 452-3-4-5. The custom found is, that flour in store is sold by order, and passes by the transfer of the order, from hand to hand, without actual delivery of the flour to any." Now, engraft this into the contract of the parties before us, and the question must be decided, unless you say that the parties could not make such a contract; that such an usage cannot stand. And why should we say so? There is nothing illegal in it. The principal foundation of Mercantile Law is usage: and it has become Law, because the Courts, finding it established in practice, have respected it, and made it the rule of their decisions in mercantile cases. That this usage is convenient, is proved both by its existence, and the nature of the article. It saves the trouble to the merchant, of going twenty times a day to the different warehouses, to examine the different parcels of flour he had bought; for, under the usage, the order is a negotiable paper: the traders in flour look to the order only, and the flour passes by it from hand to hand: but, the character of the paper is changed at once, and the usage destroyed, if you say that however exactly it describes the flour, that flour shall not pass, if there be any other like it in the warehouse: the paper will no longer pass by its face, but before any buyer will pay his money, he will go to the warehouse with the bill of parcels, in his hand, and examine, not only to ascertain whether the flour described is there, but whether there may not be in the warehouse other flour of the same brand and quality. And why should we break up this usage, and impose this heavy clog on the commerce of the place? Especially, when in the case before us, it would have an ex post facto operation on the contract of the parties. It cannot be denied that, under the usage, they intended an immediate change of ownership as to the flour, and consequently, that from the moment of such change, it should be at the risk of the vendee; but, after the flour is burnt, we say that the usage is a bad one, and shall not stand, and giving this decision a retrospective action, throw the loss upon the vendor.
To show the weight which the Courts give to mercantile usage, I will refer to the subject of dock warrants, treated of in the following cases: Spear v. Travers, 4 Camp. 251; Zwinger v. SamudaCom. Law Rep. 98; Lucas v. DorrienCom. Law Rep. 105; and Keyser v. Suse, 5 Com. Law Rep. 461.
But, suppose that in the teeth of the contract, the usage and the cases cited, we say that no flour of Rose and Pedlar brands passed, because there were two barrels of each more than were sold. Still as regards the flour of the Bent Creek, Fredonian, Rocky Creek, D. S. Garland, and Rockford brands, we must say that passed by the order, because all in the warehouse, of those brands and quality, were contained in the order: (as in Rugg v. Minet, the Court decided that the property passed to the vendee, in all the casks that were filled up.) And if the property in any of the flour passed to the vendee, the vendor had a right to recover for so much, however small the quantity; and the instruction of the Court which we are discussing, and upon which the whole turns, was not wrong, for, the Court instruct the Jury, that if they believe the evidence, the Plaintiff had a right to recover in this action, not pretending to speak as to the amount of the recovery, but as to the form of the action; as to the law, not as to the facts.
Upon general principles, then, and also upon the usage, I am of opinion, that all the flour in the order passed by it to the vendee, and that he must bear the loss; but if only a part passed, it is clear to me that the Court did not err in its instruction to the Jury. The Judgment must be affirmed.
JUDGE CABELL.
This was an action of Assumpsit, brought in the Superior Court Court of Law for the County of Henrico, by William G. Pendleton, against Gabriel Ralston and Archibald Pleasants, merchants and partners, trading under the firm of Ralston & Pleasants for $ 416 50, the price of one hundred and nineteen barrels of fine flour sold and delivered by Pendleton to Ralston & Pleasants. The suit abated as to Ralston, by the return of the Sheriff, and was afterwards prosecuted against Pleasants only. The contract of sale was not denied by Pleasants; but his defence was that it was an executory contract only, and not a sale executed by delivery.
That a delivery of the flour was necessary to make it an executed sale, is not denied. Nor is it pretended that there was an actual delivery. But a constructive delivery is as effectual as an actual delivery: And the question is, whether there has been such delivery in this case.
The contract was for the sale of one hundred and nineteen barrels of fine flour, of certain specified mill brands, which Pendleton then had stored in the warehouse of J. & J. Fisher, in the City of Richmond. The price was fixed at $ 3 50 per barrel, to be paid in hand, amounting in the whole to $ 416 50. Ralston & Pleasants, as soon as the contract was entered into, gave to Pendleton their check on the Bank of Virginia, for the amount of the purchase money, and received from him a bill for the flour, and an order on J. & J. Fisher, to deliver the flour to them. The order was in the following terms: " Messrs. John & James Fisher, junr., Gentlemen, Deliver to Messrs. Ralston & Pleasants, one hundred and nineteen barrels Richmond fine flour, which are stored with you, of the following brands, viz: Pedlar, 62 barrels; Rosebarrels; Bent Creek, 7 barrels; Fredonian, 10 barrels; Rocky Creek, 20 barrels; David S. Garland, 13 barrels; Rockford, 5 barrels. Yr. mo. Wm. G. Pendleton. Richmond, March 20, 1820." Pendleton actually had, at the time of the contract, in the warehouse of the Fishers, fine flour with which the order might have been strictly complied with. There was not, at that time, in the said warehouse, any fine flour of the specified brands, other than that which belonged to Pendleton; nor had he there any fine flour of the specified brands, beyond what the order called for, except that he had two more of " Pedlar" brand, and two more of " Rose" brand, than the order required. But there is no difference whatever between barrels of fine flour of the same mill brand. " It is the common usage of trade in the City of Richmond, well known to the merchants thereof, for flour in store to be sold by draft or order on the store-keeper, and to pass by that mode of transfer, through many different hands, without actual delivery." The storage due for the flour in this case, was not paid by Pendleton, but " it is the usage of the store-house-keepers in the City of Richmond, well known to the merchants, to charge the vendor with the storage, and to deliver the flour to his order, when called for; " and it is proved in this case, that the flour would have been delivered, on the day of sale, had it been called for, notwithstanding the storage had not been paid. It sometimes happens that flour, when about to be delivered, is found to require coopering; but in such cases, it is the usage in the City of Richmond, well known to the merchants, for the cooperage to be done by the store, at the expense of the vendor.
It was insisted, by the Counsel for the Appellant, that there can be no constructive delivery, where any thing remains to be done, as between the vendor and vendee, to put the property into a deliverable condition. And it must be conceded that the cases referred to by him, fully established the principle. I will, however, take a hasty view of them, in order to show that the circumstances of those cases, are materially different from this case.
In Hanson v. Meyer, 6 East. 614, there was a sale of all a man's starch, at a certain warehouse, at so much per cent., and it was held that the same was not complete to pass the property, because the starch remained to be weighed, before even the price could be ascertained.
In Wallace v. Breeds, 13 East 522, there was a sale of fifty out of ninety tons of Greenland oil, which was in casks. It was held, that the property did not pass, because, according to the constant custom of the trade, the casks were to be searched by a cooper employed by the vendor; a broker, also, on behalf of both the vendor and vendee, was to attend and make a minute of the foot-dirt and water in each cask; and the casks were then to be filled up by the seller's cooper, and at his expense, so that they might be delivered in a complete state, containing the quantity sold.
In Austen v. Craven, 4 Taunt. 644, there was a sale of fifty hogsheads of sugar, of a certain quality, at so much per cwt. There were no hogsheads of such sugar in existence at the time of the contract. The hogsheads were to be filled and then weighed, before even the price could be ascertained. Held that the sale was not complete.
In Busk v. DavisMau. & Selw. 397, there was a sale of ten tons out of eighteen tons of Riga flax, then lying at a certain wharf. The flax was in mats of different weights. It remained to weigh the flax, before it could be in a situation to be delivered; and it would be necessary to break some of the mats to make up the precise quantity sold. I say nothing at present, as to the right of the vendor to select the mats to be delivered. It was held that the sale was not complete, so as to pass the property.
In Shepley v. Davis, 5 Taunt. 617; 1 Com. Law Rep. 211, there was a sale of ten tons out of thirty tons of hemp, at a warfinger's. It remained to weigh the ten tons from the general mass, before they could be delivered. Held, that the sale was not complete, so as to pass the property.
In White v. Wilks, 5 Taunt. 176; 1 Com. Law Rep. 64, there was a sale of twenty tons of oil, out of a merchant's stock, consisting of several large quantities of oil, in divers cisterns, and in divers places. It remained to measure from the larger masses, the twenty tons sold, before they could be in a situation to be delivered. Here, also, I say nothing at present, as to what cisterns the twenty tons should be taken from. This sale was held not to be complete, to pass the property.
Thus, in some of these cases, it remained to ascertain even the price of the things sold; and in all of them, it remained to measure or to weigh the thing sold, before it could be delivered. In the case at Bar, nothing remained to be done for ascertaining the price or amount of purchase money; that was fixed by the terms of the contract itself; and the thing sold required neither to be weighed nor measured.
But, it is contended, that this case resembles Wallace v. Breeds, and comes within the influence of the general principle as to the thing sold not being in a deliverable situation, because the flour might require some coopering. But, in Wallace v. Breeds, it was certain at the time of the sale, that the thing sold was not then in a situation to be delivered; it was certain that it required the agency of a cooper to put it into that state; and the cooper was to be selected by the vendor. In this case, no agency of a cooper may have been necessary. It is only sometimes, that flour in store, requires any coopering; and when it does, the cooper is not then to be selected by the vendor; for, the usage of the trade, and consequently the implied contract of the parties, provides that the coopering, when any is necessary, shall be done by the warehouse-man, without any farther act to be done as between vendor and vendee. The coopering, under this usage, ought not to be considered as an act necessary to complete the sale, but merely as an act to be done, at the convenience and at the future request of the vendee. It is to the interest of the vendees that it should never be done till the flour is actually called for. And the acts of the parties in this case would seem to show that they so considered it. Ralston & Pleasants gave their check for the purchase money, (intending it as full payment,) in the same manner as if the sale were complete; and Pendleton insisted on no stipulation, fixing the time for delivering the flour, which he probably would have done, had it been considered that the flour was yet to be delivered, and that, in the mean time, it was at his risk.
But it is contended, that the property did not pass by the sale in this case, because the specific flour sold was not ascertained as to identity and individuality, by an actual separation of it from the other flour with which it was mixed in the warehouse. This objection cannot, I presume, be intended to apply to any of the flour sold, except to that of the Pedlar and Rose brands. As to all the flour of the other brands, there was no other flour of those kinds in the warehouse, except the precise numbers mentioned in the order. Consequently, their identity and individuality were as fully ascertained as if they had been actually delivered. The objection, however, does apply to the flour of the Pedlar and Rose brands, there being two barrels of each of those brands more than the numbers called for in the order. And the question is, whether that circumstance shall prevent the sale from passing the property in the flour of those brands. It is true, that Chief Justice Mansfield said in Austen v. Craven, and in White v. Wilks, that the actions could not be supported, because the contracts of sale under which the property was claimed, attached to no specific quantity of oil in the one case, or of sugar in the other. And in Busk v. Davis, Lord Ellenborough, and some of the other Judges, spoke of the necessity of ascertaining the identity and individuality of the property. But it should always be borne in mind, that the expressions of Judges must be construed in reference to the circumstances of the cases to which they are applied. Austen v. Craven, was the sale of fifty hogsheads of sugar, of a particular quality, which were not in existence at the time of the contract; and if they had been in existence, yet as hogsheads of sugar are of no prescribed weight, it would have been necessary to weigh them, before the sale would be complete. White v. Wilks, was the sale of a smaller portion of oil, out of divers larger quantities. It was not only uncertain from which of the larger quantities the portion sold was to be taken, but if they had been ascertained, still the part sold was to be separated by measuring it from the larger quantity with which it was mixed. Busk v. Davis, was the sale of a quantity of flax, out of a much larger quantity, lying in mats, at a certain wharf. The sale was for so many tons, not so many mats; besides, the mats were of unequal weights. It was necessary to weigh the quantity sold, and to break some of the mats, to get the precise quantity sold, before the article sold could be delivered. In cases like these, where portions of a larger mass, liquid or solid, are sold, and where the portions sold must be weighed or measured, (which, of necessity, includes the idea of separating them from the general mass,) it may be said that the identity and individuality of the part sold, must be ascertained by actual separation from its kindred residue, before the sale will be complete to pass the property; or, in other words, before there can be a constructive delivery. But it by no means follows, that the same principle applies to cases where the things sold are not portions of a larger mass, to be separated by weighing or measuring, but consist of divers separate and individual things, all precisely of the same kind and value, mixed with divers other separate and individual things, which are also of the same kind and value, and between which and the things sold, there is no manner of difference whatever. There is no case of this kind to which the principle has been applied. On the contrary, it has been decided, that in such cases, no actual separation is necessary, even to support the action of Trover. Thus, in Jackson, and another v. Anderson, 4 Taunt. 24, J. Fielding, in Buenos Ayres, put 4,718 Spanish milled dollars into a barrel, and consigned them to Laycock & Co., of London, with directions to deliver 1,969 of them to Jackson & Co., that being the sum in which Fielding was indebted to them for goods consigned by them to him, and sold on their account. Laycock & Co. did not deliver the 1,969 dollars to Jackson & Co., but assigned the bill of lading for the barrel of dollars to Anderson, who sold all the dollars to the Bank of England. Jackson & Co. brought Trover against Anderson, for the 1,969 dollars. The defence was precisely the same that was made in Austen v. Craven, White v. Wilks, and Busk v. Davis, viz: that the action of Trover would lie only for specific property, and that the identity and individuality of the dollars sued for, had never been ascertained by actual separation from the others with which they were mixed. The defence, however, was overruled, and the Plaintiff obtained Judgment, on the ground expressly stated by Chief Justice Mansfield, " that as all the dollars were of the same value, it could not be a question which particular dollars were his." This remark applies to, and is decisive of, the case before us; for, it is expressly stated in the Record, that between barrels of fine flour, of the same mill brand, there is no difference whatever. Nor is it material that the property, in the case of Jackson v. Craven, was claimed under a bill of lading, and in the other cases, under a contract of sale. The action was Trover in all the cases, and there was no greater necessity for showing the identity and individuality of the property in the one set of cases, than in the other; yet the action was supported in the case where the things sued for were individual things of the same value, mixed with others of the same kind and value; and was not supported, where the action was not for individual things of the same kind, but for a portion of a larger mass, liquid or compound, which requires to be weighed or measured.
It is farther contended for the Appellant, that it was necessary to count the barrels before they could be delivered, and that the sale could not be complete to pass the property, until they were counted. But, I have not found any adjudication which countenances the idea, that the necessity to count the things sold, will produce that effect, in cases where the things sold are individual things, of the same value with each other, and with those with which they are mixed, and where the counting is not necessary for ascertaining the amount of the purchase money. In the case before us, the things sold were individual things, of the same value, so far at least as relates to the flour of the same brand; and no counting was necessary for ascertaining the amount of the purchase money: that was fixed by the terms of the contract itself. The barrels, it is true, were to be counted. But so they must be in cases where a certain number is sold, at an agreed price, and where there are no more in the warehouse than the number sold. But, in such cases they are counted, merely to see that they are in the warehouse. And it would not be contended, I presume, that the necessity for counting in such cases, would prevent the property from passing. I admit, that if the sale had not specified the number of barrels, but had been of all the flour in the warehouse, or of all the flour of any particular brand, at so much per barrel, such a sale would not pass the property, until the barrels were counted; because, the counting would be necessary in that case for ascertaining the amount of the purchase money; and no sale can be complete till that is ascertained.
I am of opinion, that the usage of trade, stated in the Record, for flour in store to be sold by mere draft or order on the warehouse man, and to pass through many hands before it is called for, is entitled to great consideration. For, Commercial Law rests principally on usage; and the usages of trade are presumed to enter into the contemplation of the parties to a contract, and they are supposed to contract on their basis.
Upon the whole, I am of opinion, that there was a constructive delivery of the flour, which completed and executed the sale, and passed the right of property to Ralston & Pleasants. The flour therefore being theirs, was at their risk, and the loss of it by the accidental burning of the warehouse, must fall on them, and not on Pendleton. And as the check was given on the Bank of Virginia for the purchase money, did not avail Pendleton as a payment, (the check itself having been consumed by fire, and the payment of it countermanded by Ralston & Pleasants,) I think Pendleton is entitled to recover the purchase money in this action, and that the Judgment should be affirmed.
The PRESIDENT.
In considering this case, I have examined all the cases cited at the Bar, and also some others that were not noticed. It is a settled rule of the Common Law, that property in personal chattels passes only by actual delivery of the thing, except in cases in which some equivalent delivery is agreed upon by the parties, or is established by custom or usage, in which a virtual delivery is substituted for actual delivery of the thing. But, in these cases, unless the thing was in a condition to be delivered without more to be done by the vendor, either as regarded the price, or the quantity, as there could be no actual delivery until that was done by the vendor, so there can be no virtual delivery equivalent to it. And all the cases on the subject appear to me to have turned on the enquiry, whether, from the nature of the subject, it was, or was not, in a deliverable condition, that is, without more to be done by the vendor affecting the price or the quantity of the thing to be delivered. From some of the cases, it might be inferred, that identity of the thing was a pre-requisite to a virtual delivery of it; and I think there can be no doubt it is so, in every case in which the price or quantity is to be affected by what remains to be done to ascertain it. But, in a case in which identity is a matter of total indifference, both to the vendor and vendee, either as regards price or quantity, it is certainly of no importance. It is impossible to suppose, upon the facts stated in the Bill of Exceptions, that if Pendleton, the vendor, has separated the one hundred and nineteen barrels of flour from the one hundred and twenty-three, in pursuance of the terms of the order; that when he came to those of Pedlar's brand, or Rose's, it was of the slightest importance to him, or to the vendors, which two barrels of each brand were left out, as exceeding the number stated in the order. All of the same brand being of equal value, and being integral quantities, they were in a deliverable condition, without more to be done by the vendor, which could affect either price or quantity. Every thing necessary to be done, to give to the vendees the actual possession of the flour, could be done by the keeper of the warehouse as well as by Pendleton, and the order under the custom, which is stated in the Bill of Exceptions, I think, virtually passed the possession of the one hundred and nineteen barrels to the vendees. The case of Whitehouse v. Frost, 12 East. 614, went a step farther than this. In that case, ten tons of oil were sold, and an order given to deliver it to the purchasers, out of forty tons then lying in one cistern in the oil-house in Liverpool; there was nothing to distinguish the ten tons from any other ten tons of the forty in the cistern; there was nothing like identity; quantity and price were alone ascertained; all the particles of the oil were mingled together in one mass; there were no integral quantities of equal value, distinct and separate from the whole mass, of which actual or virtual delivery might be made; until the oil was measured out, and the ten tons separated from the mass, this could not be predicated of it, and yet the Court held that the property passed to the vendees. I know that this case was condemned by many of the Judges afterwards, as having gone too far; but it is clearly distinguishable from the one before us. When that case was pressed upon the Court in the case of Craven v. Austin, 4 Taunt., Heth, Justice, asked, if ten tons had leaked out of the cistern, to whom would they be deemed to belong: and Mansfield, Chief Justice, in delivering the opinion of the Court, said it was unlike other cases, and must stand on its own bottom.
In the case of Busk v. DavisMau. & Selw. ten tons of flax were sold, to be taken out of eighteen tons put up in mats; the order for it had been accepted and entered in the wharfinger's books, but that, Lord Ellenborough said, was not sufficient: further acts were necessary, for the flax was to be weighed, and the portion of the entire bulk to be delivered, was to be ascertained, and it might be necessary to break open some mats to make up the quantity agreed upon. If in that case the flax had been in mats of equal quantity, and value, the first ascertained by the inspection of a public officer, and the latter by the facts in the case, as in the case of the flour, it is not to be inferred from the language of Lord Ellenborough, or any other Judge, that it would have been held that the property did not pass; but the contrary. The case of Jackson and another v. Anderson and another, 4 Taunt. is a case, in which identity of the thing, in which property was claimed by the Plaintiffs, was not pretended. The 1,969 dollars consigned to Jackson & Co. by Fielding, the shipper, were never separated from, nor counted out from the 4,718 dollars shipped to Laycock & Co. and transferred by them to Anderson, and yet it was held that the property in the 1,969 dollars passed to Jackson & Co. the Plaintiffs, and that they could maintain Trover for them. They were separate quantities of the same value, and were as little distinguishable from other dollars in the same barrel, as the sixty-two barrels of flour of Pedlar's brand, and the two barrels of Rose's brand, from what would remain if those brands, in the case before us. In that case, they held that the property passed, though the bill of lading would have been satisfied by the delivery of any dollars to the amount of 1,969, and property in any specific 1,969 dollars could not be said to be vested in the Plaintiffs. The order for the flour, in our case, could not have been satisfied by the delivery of any flour, even of the same inspections, and brands, except that which was in the warehouse when that order was given; from that moment, the one hundred and nineteen barrels of fine flour, of the marks and brands specified in the order, became the property of the vendees: all that was material to them was, that the flour described in the order was in the warehouse, to be counted out to them when called for. If the vendor had not owned another barrel there except the one hundred and nineteen barrels specified in the order, it could not be doubted that his property in the one hundred and nineteen barrels passed to the vendees though it might be to be counted out of flour of the same description, belonging to others. As it had not been questioned that the flour of all the brands described in the order, except Pedlar's and Rose's, passed to the vendees, that sixty-two barrels of the first, and two of the latter were to be counted out of sixty-four in the one case, and four in the other, cannot vary the case: whether it was to be counted out of flour belonging to others or to the vendor, was not material. The rule, I know, has been laid down, that where any thing remains to be done to ascertain the price, the quantity, or the thing, the property does not pass. In the case before us, price and quantity were ascertained; and as to the thing, nothing more is meant than the kind of thing, wherever from the nature of it, it cannot be identified, and distinguished from things of the same kind and value, as in the case of the dollars in Jackson v. Anderson, and of the flour in the case before us.
With regard to the cooperage, which might not be necessary, and the price of storage, as it was the custom to charge both to the vendor, neither can affect the question.
I think, therefore, that the instruction of the Judge to the Jury was correct, and that the Judgment must be affirmed.
SALES.
I. Sales Distinguished from Other Transactions.
1. From Bailments.
2. From Hiring.
3. From Gifts.
4. From Consignments.
II. Contract of Sale.
1. Mutual Agreement.
2. Offer and Acceptance.
III. Subjects of Sale.
1. Existence of Thing Sold.
a. Expectant Interests.
b. Possibilities.
IV. When Title Passes.
1. Intention Governs.
2. Unconditional Sale of Chattels.
3. Something Remaining to Be Done.
a. In General.
b. Part of Uniform Mass.
(1) Sale of Nonspecific Goods.
(2) Goods Sufficiently Designated.
4. Payment of Purchase Price.
V. Delivery of Goods.
1. Duty to Deliver.
2. Time of Delivery.
3. Place of Delivery.
4. Quantity to Be Delivered.
5. Symbolical or Constructive Delivery.
6. Delivery to Carrier.
7. Property Not in Possession of Seller.
8. Excuse for Nondelivery.
9. Remedies of Buyer for Nondelivery of Goods.
a. In General.
b. Accrual of Cause of Action.
c. Measure of Damages.
(1) In General.
(2) Stock Sales.
(3) Limitation of Rule.
(4) Absence of Market Value at Place of Delivery.
(5) Proof of Market Value.
(6) Special Damages.
VI. Rights of Buyer.
1. Inspection.
2. Rescission.
VII. Stoppage in Transitu.
VIII. Acceptance of Goods.
1. Duty to Accept.
2. Unreasonable Delay.
3. Agent May Accept for Principal.
4. Delay in Rejection.
5. Acts of Ownership.
a. In General.
b. Permitting Third Person to Convert Goods.
6. Acceptance as Waiver of Late Delivery.
7. Remedies of Seller for Nonacceptance of Goods.
a. Accrual of Cause of Action.
b. Measure of Damages.
c. Resale by the Seller.
d. Lien.
IX. Fraudulent Sales.
X. Sales by Sample.
XI. Bona Fide Purchasers.
1. Trustees in Deeds of Trust.
2. Purchaser from Fraudulent Buyer.
XII. Conditional Sales.
1. Definition.
2. Payment in Installments.
3. Sale or Return.
4. Sale on Trial.
5. Recordation of Conditional Sales.
Cross-References to Monographic Notes. Contracts, appended to Enders v. The Board of Public Works, 1 Gratt. 364. Bills of Sale, appended to Givens v. Manns, 6 Munf. 191. Fraudulent and Voluntary Conveyances, appended to Cochran v. Paris, 11 Gratt. 348. Liens, appended to West v. Belches, 5 Munf. 187. Warranty, appended to Wilson v. Shackleford, 4 5.
I. SALES DISTINGUISHED FROM OTHER TRANSACTIONS.
1. From Bailments. -- The distinction between a bailment and a sale is that when the identical thing delivered is to be returned, though in an altered form, the contract is one of bailment, and the title to the property is not changed. But when there is no obligation to return the specific article either in kind or identity, and the receiver is at liberty to return another thing of equal value, he becomes debtor to make the return, the title to the property is changed, and the transaction is a sale. Reherd v. Clem, 86 Va. 374, 10 S.E. 504.
But in an early case it was held that where wheat is delivered at a mill to be ground, upon an agreement that the miller shall return to the farmer a given quantity of flour for so many bushels of wheat, the miller is a bailee and not a purchaser, notwithstanding the fact that the miller is not bound to return flour made from that identical wheat, but flour of a certain quality made from any wheat in the mill. Slaughter v. Green, 1 3, 10 Am. Dec. 488, and note, where this decision is reviewed and criticized. In Smith v. ClarkWend. 85, the court said that Slaughter v. Green, 1 3, was a hard case, and has made a bad precedent.
2. From Hiring. -- The principal difference be tween a sale and a hiring is that in the former case the owner parts with the whole proprietary interest in the thing, while in the latter he parts with it only for a temporary use and purpose. In a sale the thing itself is the object of the contract; in a hiring, the use alone is its object. Baldwin v. Van Wagner, 33 W.Va. 283, 10 S.E. 716.
3. From Gifts. -- A gift is a contract without consideration. But a sale is a contract for a valuable consideration paid or stipulated; though sales may be inferred from the circumstances without express proof of any consideration. Monographic note on " Gifts," appended to Barker v. BarkerGratt. 344; Hansbrough v. Thom, 3 Leigh 147.
4. From Consignments. -- In determining whether the agreement between the parties constitutes the relation of consignor and consignee, or that of seller and buyer, the court looks beyond mere names and within to see the real nature of the agreement, and determines from all its provisions taken together. If the agreement is in substance and effect a sale, it must be so declared, no matter by what name the parties choose to designate it. Arbuckle v. Gates, 95 Va. 802, 30 S.E. 496.
For example, where the consignee of goods may sell them upon terms to be fixed by himself, and there is no provision for the return of any goods that may not be sold, but he is bound to pay the consignor a fixed price for the goods at a fixed time, regardless of whether they have been sold or not, or whether the proceeds of sale have been collected or not, such transaction constitutes a sale and not an agency. Arbuckle v. Gates, 95 Va. 802, 30 S.E. 496.
II. CONTRACT OF SALE.
1. Mutual Agreement. -- To constitute a sale of personal property, there must be a mutual agreement on the part of the seller to sell and of the buyer to buy. Bartholomae v. Paull, 18 W.Va. 771.
This agreement, however, need not be express, but it may be implied from the language or conduct of the parties. Bartholomae v. Paull, 18 W.Va. 771.
It is essential to the force and efficacy of every contract of sale that the buyer and seller should mutually contemplate the same subject matter of sale, therefore where a merchant orders goods of a certain kind and style, and the party to whom the order is given undertakes to fill it by delivering goods of a different kind and style, the merchant ordering the goods may refuse to receive them, on the ground that the goods delivered are not the goods ordered. Haxall v. Willis, 15 Gratt. 434.
But if the buyer, notwithstanding the want of correspondence between the goods ordered and sent, accepts and treats them as a compliance with his order, he cannot afterwards, as a general rule, set up any want of correspondence, to defeat the seller's right to recover the price. Haxall v. Willis, 15 Gratt. 434 at 451.
2. Offer and Acceptance. -- Where an agent, having full authority to sell an article at a price named, offers the article at that price, and the offer is accepted unconditionally, this completes the contract of sale between the parties, without confirmation by the principal, or communication of such confirmation to the purchaser. Insurance Co. v. Gamble, 94 Va. 622, 27 S.E. 463.
In order to constitute a complete sale there must be a distinct act of acceptance on the part of the buyer. Bartholomae v. Paull, 18 W.Va. 771.
III. SUBJECTS OF SALE.
1. Existence of Thing Sold. -- Personal property to be the subject of sale, must have an existence; but it need not have, in every sense, a perfect, tangible existence, to be regarded in law as capable of ownership; but a potential existence is sufficient. For example, a man may not sell the fruit from trees, or wool or lambs from sheep, which he has not; but he may do so if he then owns the trees or sheep. Their ownership gives potential existence to the fruit and wool and lambs, though as yet the trees have not blossomed, or the wool grown, or the ewes become pregnant. Wiant v. Hays, 38 W.Va. 681, 18 S.E. 807. See Braxton v. Bell, 92 Va. 229, 23 S.E. 289.
a. Expectant Interests. -- The actual adult owner of a vested expectant interest in property, whether in reversion or remainder, may sell such interest, and the sale will be binding on him, in the absence of fraud or imposition on the part of the purchaser. Cribbins v. Markwood, 13 Gratt. 495, 67 Am. Dec. 775.
But equity extends a very anxious protection to persons selling expectant interests, although they do not stand in the relation of expectant heirs, and trivial circumstances, added to inadequacy of price, will be sufficient to set aside such sales. M'Kinney v. PinckardLeigh 149, 21 Am. Dec. 601.
b. Possibilities. -- A mere contingent possibility, not coupled with an interest, is not the subject of sale, as all the wool one shall ever have, or the sheep which a lessee was covenanted to leave at the end of an existing term. But if rights are vested, or possibilities are distinctly connected with interest or property, they may be sold. Wiant v. Hays, 38 W.Va. 681, 18 S.E. 807.
IV. WHEN TITLE PASSES.
1. Intention Governs. -- The main inquiry in determining whether the title has or has not passed by the contract is: what was the intention of the parties? The intention of the parties in a contract of this character is the agreement, for it will not be denied by any one that the parties can expressly agree that the articles purchased shall pass at once to the buyer, although they are to be measured, weighed or counted, and the price is to be precisely ascertained and paid in the future. See Morgan v. King, 28 W.Va. 1.
The question whether a sale of personal property is complete or only executory, is to be determined from the intent of the parties as gathered from their contract, the situation of the thing sold, and the circumstances surrounding the sale. Morgan v. King, 28 W.Va. 1; Hood v. Bloch, 29 W.Va. 244, 11 S.E. 910; Osborne v. Francis, 38 W.Va. 312, 18 S.E. 591, 45 Am. St. Rep. 859.
2. Unconditional Sale of Chattels. -- But where there is an executed sale of an interest in property, without reservation, the title passes immediately upon the sale to the buyer, and, therefore, it is unnecessary for the seller to allege, in an action on the contract, that he has transferred his interest. Smith v. Burton, 94 Va. 158, 26 S.E. 412.
Where a bill of sale is executed from one person to another, for a steamboat, and delivery and possession accompanies the act, thereby rendering the sale complete, there is no such right of ownership or title in the seller as would authorize one of his creditors to attach the boat. Hobbs v. Steamboat Interchange, 1 W.Va. 57.
3. Something Remaining to Be Done.
a. In General. -- Where anything remains to be done by the seller as between him and the buyer essential to put the goods sold in a deliverable state; or where anything remains to be done by the seller for the purpose of ascertaining the price of the goods, as weighing, testing or measuring them, where the price is to depend upon the quantity or quality of the goods, the performance of these things, in the absence of anything indicating a contrary intent, is a condition precedent to the transfer of the property, and therefore, in the meantime, the goods remain at the risk of the seller. These principles are known as Lord Blackburn's first and second rules. Pleasants v. Pendleton, 6 473, 18 Am. Dec. 726; Dixon v. Myers, 7 Gratt. 240; Morgan v. King, 28 W.Va. 1; Hood v. Bloch, 29 W.Va. 244, 11 S.E. 910.
On the other hand, where there is a contract for an immediate sale, and nothing remains to be done by the seller as between him and the buyer, the seller immediately acquires a property in the price, and the buyer a property in the goods, and then all the consequences resulting from the vesting of the property follow, one of which is, that if it be destroyed the loss falls upon the buyer. Chapman v. Campbell, 13 Gratt. 105; Hobbs v. The Steamboat Interchange, 1 W.Va. 57.
For example, when logs are delivered, measured and branded with the brand of the purchaser, at the point or place of delivery in strict accordance with the unequivocal stipulations of the written contract of purchase, the sale is complete, and the title passes and vests in the purchaser, notwithstanding other provisions in such written contract by which the seller agrees for a fixed compensation safely and without loss or damage to deliver such logs at another different point for the purchaser. Bank of Huntington v. Napier, 41 W.Va. 481, 23 S.E. 800.
Co-operage and Warehouse Rent. -- So also, where there is a usage, when barrels of flour are delivered by a warehouseman to a purchaser, to charge co-operage and warehouse rent to the seller, neither of these things shows anything farther to be done by the seller, nor any obstacle to the delivery of the flour. Pleasants v. Pendleton, 6 473, 18 Am. Dec. 726.
Rule Where Goods Are Actually Delivered. -- But where there has been an actual change in the possession and custody of the thing bargained for, the rule is essentially different. In other words, where the subject matter of the contract has not only been completely ascertained and identified, but actually delivered, the mere fact that the weighing, counting or measuring, is yet to be done by the buyer, simply in order to ascertain the aggregate sum of money which he is to pay as the price, does not of itself show such a defect in the transfer of the title as may prevent the risk of the loss from being cast on the buyer. Haxall v. Willis, 15 Gratt. 434.
b. Part of Uniform Mass. -- When the subject matter of the sale is part of an ascertained mass of uniform quality and value, no separation is necessary to vest title in the purchaser to the part sold. Thus, separation is unnecessary to pass the title to a number of barrels of flour sold out of a larger number of the same brand, quality and price. Pleasants v. Pendleton, 6 473, 18 Am. Dec. 726.
For example, where there is a sale of a specified number of barrels of flour lying in a certain warehouse, the barrels having on them different brands, and the buyer gives a check in payment, and the seller gives to the buyer a bill of parcels, specifying the number of barrels of each brand, and an order on the warehouseman for the flour, and a receipt in full for the price of the flour, this is a complete and executed contract, and the title passes to the buyer so that if the property is destroyed before actual delivery, the loss falls on the buyer. Pleasants v. Pendleton, 6 473, 18 Am. Dec. 726.
(1) Sale of Nonspecific Goods. -- Where the subject of the sale is nonspecific goods, the property does not pass until an appropriation of the specific goods has been made with the assent of both seller and buyer. American Hide, etc., Co. v. Chalkley, 101 Va. 458, 44 S.E. 705.
It has been held, however, that where the seller delivers nonspecific goods, such as salt to be made, to the person authorized by the buyer to receive it, this vests title in the buyer and he may maintain trover to recover it from a third person who wrongfully converts it to his own use. Lewis v. Arnold, 13 Gratt. 454.
(2) Goods Sufficiently Designated. -- Where goods sold are sufficiently designated, so that no question can arise as to the thing intended, it is not absolutely necessary that there should be a delivery, or that the goods should be in a deliverable condition, or that the quality or quantity, when the price depends upon either or both, should be determined; these are circumstances indicating the intent but are not conclusive. Morgan v. King, 28 W.Va. 1. Approved in Hood v. Bloch, 29 W.Va. 244, 11 S.E. 910.
But where there is a sale of goods generally, but neither the goods sold, nor the mass itself out of which the goods sold are to be taken, is ascertained or designated, no title to the property vests in the purchaser till delivery, because until then the very goods sold are not ascertained. State v. Hughes, 22 W.Va. 743.
Nor does the title to property vest in the buyer upon the signing and delivering of a contract of the following purport: " I have this day sold to B. all my Swiss cheese now in my cellars, between 80 and 90 loaves (this does not include cracked or second-class cheese), at 12 1/4 cents per pound; the cheese to be paid for when received; the second grade cheese to be 10 1/4 cents per lb.; B. to pay 1/2 freight from F., and to have all out of the cellars before Jan'y 1, 1885; " the contract being dated and delivered October 27, 1884. Hood v. Bloch, 29 W.Va. 244, 11 S.E. 910.
Pleasants v. Pendleton has been cited frequently by the courts in other states of the union, but it has by no means met with universal approval. It was cited with approval in Kimberly v. Patchin, 19 N.Y. 330, 75 Am. Dec. 339; Watts v. Hendry, 13 Fla. 523; Kingman v. Holenquist (Kan.). 59 Am. Rep. 606. Hurff v. Hires, 11 Vroom 593. But in Woods v. McGee, 7 Ohio Rep. part II, p. 127, 30 Am. Dec. 203, the court, after laying down the general rule that where a part of an undivided mass of property is sold, it is necessary that some further act should be done, specifying and identifying the part sold before the action of trover will lie, said: " The case of Pleasants v. Pendleton, 6 473, is however, a very strong case the other way. But it is impossible to hide from one's self, that the fact of the small difference between one hundred and twenty-three barrels, the whole quantity, and one hundred and nineteen barrels, the number sold, may have gone a great way to influence the judgment. It was a hard case and hard cases always make a shipwreck of principles. It is impossible to answer the difficult inquiry. If a part only of the flour had been burnt in that case, on whom would the loss have fallen?"
And in Ferguson v. Northern Bank (Ky.), 29 Am. Rep. 424, the court said: " The case of Pleasants v. Pendleton, 6 473, decided in the year 1823, has been cited as a strong case in support of Kimberly v. Patchin, but on an examination of that case it will be found that not one of the barrels of flour in the warehouse was branded like the one hundred and nineteen barrels claimed by the plaintiff, and it was there expressly held that the subject of the bargain was so designated as to be clearly distinguishable." The case of Pleasants v. Pendleton, 6 473, is also disapproved in Hutchinson v. Hunter, 7 Pa. 140.
4. Payment of Purchase Price. -- Where payment of the purchase price is a condition precedent in a contract of sale, the title to the property does not pass to the buyer until that is done. Freeport Stone Co. v. Carey, 42 W.Va. 276, 26 S.E. 183.
Thus, although every thing the seller has to do has been done, such as marking, measuring and weighing the goods, so that the title vests in the buyer, yet the seller is not required to part with the goods until he is paid for them, and he has a lien upon the goods for the price so long as they remain in his possession; nor does part payment destroy his lien. Curtin v. Isaacsen, 36 W.Va. 391, 15 S.E. 171.
Waiver of Payment. -- But an absolute and unconditional delivery is regarded as a waiver of the condition. For example, where a sale is conditioned upon full payment on delivery of the property, an acceptance of a partial payment, with no express agreement as to credit, is a waiver of the condition. Freeport Stone Co. v. Carey, 42 W.Va. 276, 26 S.E. 183.
Sale on Credit. -- Moreover, a sale may be just as binding if made on credit as if made for ready money; and in such case the buyer may bring his action at once against the seller for refusing to deliver the property, without making any tender of the price. Chapman v. Campbell, 13 Gratt. 105.
V. DELIVERY OF GOODS.
1. Duty to Deliver. -- As soon as a contract for the sale of a chattel is completed, the seller, in the absence of a contrary indication or agreement, must deliver the property to the buyer when the latter has paid the consideration money. See Chapman v. Campbell, 13 Gratt. 105 at 110.
2. Time of Delivery. -- As to the time of delivery, the law supposes, in the absence of evidence to the contrary, a reasonable time, unless a definite time is fixed by agreement. But if a definite time was set, this is of the essence of the contract as between the parties. Greenbrier Lumber Co. v. Ward, 36 W.Va. 573, 15 S.E. 89; Boyd v. Gunnison, 14 W.Va. 1. For example, where no time was fixed in a contract for the delivery of oil, it was held that the buyer could not, without the consent of the seller, extend the delivery of any part of the oil beyond a reasonable time. Boyd v. Gunnison, 14 W.Va. 1.
And where fruit trees are bought to be delivered in the fall, the buyer may refuse to accept them unless they are delivered in that part of the season properly suited for transplanting such trees. Weltner v. Riggs, 3 W.Va. 445.
Delivery by Installments. -- But where the seller agrees to deliver the articles sold as fast as a certain party delivers them to him, the buyer cannot set a time within which the seller must complete the delivery or be deemed guilty of a breach of contract, so as to entitle such buyer to purchase the residue in market, and recover of the seller the difference between the market price and the sale price. Smith v. Snyder, 82 Va. 614; Smith v. Snyder, 77 Va. 432.
Postponement by Request of Buyer. -- Where, in a contract of sale, delivery is postponed at the buyer's request and the contract is ultimately broken, this has the effect of postponing the date of breach, and therefore alters the time with reference to which damages are to be fixed. Smith v. Snyder, 77 Va. 432.
Notice of Time of Delivery. -- Where no day is specified as the time of delivery, but it is to be designated by the seller, he must give the buyer reasonable notice thereof. Weltner v. Riggs, 3 W.Va. 445; Smith v. Snyder, 77 Va. 432 at 442.
3. Place of Delivery. -- Where a contract for the sale of personal property names several places at which the property may be delivered, at the buyer's option, the buyer must within a reasonable time make his selection of the place of delivery. Boyd v. Gunnison, 14 W.Va. 1.
In Boyd v. Gunnison, 14 W.Va. 1, the contract was made on the 30th of March, 1868, for the sale of 2000 barrels of oil, the contract giving the buyer the right to select one of three places mentioned in the contract for the delivery of the oil, and on the 9th of April, 1868, the buyer selected the city of New York, one of the places mentioned in the contract, as the place of delivery. It was held that the selection was made in a reasonable time.
4. Quantity to Be Delivered. -- As to the quantity which the seller is bound to deliver, this depends, of course, upon the terms of the contract; therefore, if the quantity to be delivered is fixed by the agreement, the seller must deliver just what he bargained to deliver, -- no more, no less; nor can the seller generally deliver a quantity in excess of that ordered. Greenbrier Lumber Co. v. Ward, 36 W.Va. 573, 15 S.E. 89.
If, on the other hand, the quantity delivered is less than that sold, it may be refused by the buyer; and if the contract be for a specified quantity, to be delivered in parcels from time to time, the buyer may return the parcels first received if the later deliveries be not made, for the contract is not performed by the seller's delivery of less than the whole quantity sold. Greenbrier Lumber Co. v. Ward, 36 W.Va. 573, 15 S.E. 89.
5. Symbolical or Constructive Delivery. -- Actual delivery is not necessary to pass the title to the buyer and put the goods at his risk; a constructive or symbolical delivery, as by delivering the key of the warehouse in which the goods are deposited, is sufficient to pass them to the buyer. Pleasants v. Pendleton, 6 473, 18 Am. Dec. 726.
6. Delivery to Carrier. -- Where a seller delivers goods to a carrier by order of the purchaser, the delivery to the carrier is delivery to the purchaser, and the property vests immediately on its delivery to the carrier; and, therefore, the place of sale is necessarily the residence of the seller, whence the goods were shipped. State v. Hughes, 22 W.Va. 743; Bloyd v. Pollock, 27 W.Va. 75; Ford v. Friedman, 40 W.Va. 177, 20 S.E. 930.
If goods are sold to a buyer to be delivered at a depot in a certain city, or to be delivered in the cars at the depot in that city, the goods remain at the risk of the seller, until they arrive at the depot in such city, but upon their arrival at the depot in such city, without being unloaded and without any notice of their arrival at the depot, they at once become the property of the buyer and are thenceforth at his risk. Bloyd v. Pollock, 27 W.Va. 75.
7. Property Not in Possession of Seller. -- The completeness and efficacy of a sale are not necessarily affected by the consideration that the property is not in the actual possession of the seller, or if in his possession, is not to be immediately delivered. There is no principle of law which establishes that a sale of personal goods is invalid because they are not in the possession of the owner. The sale of a chattel in the possession of a third party, claiming no adverse title, is not the transfer of a right of action, but is a sale of the thing itself. Chapman v. Campbell, 13 Gratt. 105.
In Chapman v. Campbell, 13 Gratt. 105, a slave on trial for larceny before a county court was sold, but before he was discharged he made his escape and was not heard of again. It was held that the contract of sale was complete, and the buyer bound for the price, though the slave was not and could not be delivered.
8. Excuse for Nondelivery. -- Inability to perform a contract, caused by the seller's default, will not excuse a failure to deliver the goods according to the contract. Richmond Ice Co. v. Crystal Ice Co., 99 Va. 285, 38 S.E. 141.
Injunction against Delivery. -- But where the nondelivery of property contracted to be sold is due to the fact that the seller was enjoined from selling and delivering the property, the seller, in an action on the contract to recover the price, may show such injunction proceedings by producing a certified copy of the record. Cogar v. Burns Lumber Co., 46 W.Va. 256, 33 S.E. 219.
9. Remedies of Buyer for Nondelivery of Goods.
a. In General. -- As soon as the contract of sale is completed, the buyer has a right to demand the thing sold immediately, in the absence of an agreement to the contrary; therefore, if he tenders the purchase money and demands the property, he may maintain detinue or trover if the delivery be refused. Chapman v. Campbell, 13 Gratt. 105 at 110.
b. Accrual of Cause of Action. -- And where the seller refuses to perform his contract to sell and deliver goods the buyer may sue immediately for damages, without waiting for the time of performance to expire. Davis v. Grand Rapids School Furniture Co., 41 W.Va. 717, 24 S.E. 630.
c. Measure of Damages.
(1) In General. -- The proper measure of damages for the breach of an executory contract to deliver goods, is the difference between the contract price and the market price at the time and place of delivery, with interest thereon until paid. Boyd v. Gunnison, 14 W.Va. 1; Perry Tie, etc., Co. v. Reynolds, 100 Va. 264, 40 S.E. 919; Trigg v. Clay, 88 Va. 330. 13 S.E. 434, 29 Am. S. Rep. 723; Smith v. Snyder, 82 Va. 614; Newbrough v. Walker, 8 Gratt. 16; Richmond Ice Co. v. Crystal Ice Co., 99 Va. 285, 38 S.E. 141; Nottingham Coal, etc., Co. v. Preas, 102 Va. 820, 47 S.E. 823.
(2) Stock Sales. -- And the same rule applies in contracts for the sale and delivery of stock. Bull v. Douglas, 4 Munf. 303, 6 Am. Dec. 518; Enders v. Board of Public Works, 1 Gratt. 364.
(3) Limitation of Rule. -- But the rule that the measure of damages, for failure of the seller to deliver goods as agreed, is the difference between the contract price and the market price of the article at the time of the breach, proceeds upon the assumption that the buyer can go into the market and obtain the article contracted for at that price. Therefore, when the circumstances of the case are such that the buyer cannot go into the market and supply himself with the article, the rule does not apply, for the reason of it has ceased. Davis v. Grand Rapids School Furniture Co., 41 W.Va. 717, 24 S.E. 630. It has been held, where the seller breaks his contract to furnish goods which have been resold by the buyer before delivery, when similar goods cannot be purchased in the market, that the measure of damages is the difference between the contract price and the price at which they have been resold. Trigg v. Clay, 88 Va. 330, 13 S.E. 434, 29 Am. St. Rep. 723.
But in order for the buyer to recover as damages the difference between the market price and contract price at the time and place of delivery, it is not necessary that he should have actually gone into the market and bought other goods to supply the place of those not delivered. Nottingham Coal, etc., Co. v. Preas, 102 Va. 820, 47 S.E. 823.
(4) Absence of Market Value at Place of Delivery. -- If there is no market price for the property at the time and place of delivery, the value of the property may be ascertained by showing its market price in other places, in the vicinity of the place of delivery, at or about the time of delivery. McCormick v. Hamilton, 23 Gratt. 561; Nottingham Coal, etc., Co. v. Preas, 102 Va. 820, 47 S.E. 823.
(5) Proof of Market Value. -- In ascertaining what is the market value of personal property and the day of delivery at a certain place, it is proper to hear evidence as to the market value of the article within a reasonable time both before and after the day of delivery. Boyd v. Gunnison, 14 W.Va. 1.
(6) Special Damages. -- The general rule is that the party injured by a breach of contract, is entitled to recover all his damages, including gains prevented as well as loses sustained, provided they are certain, and such as might naturally be expected to follow the breach. It is only uncertain and contingent profits, therefore, which the law excludes; not such as being the immediate and necessary result of the breach of contract, may be fairly supposed to have entered into the contemplation of the parties when they made it and are capable of being definitely ascertained by reference to established market rates. James v. Adams, 8 W.Va. 568; Newbrough v. Walker, 8 Gratt. 16; Trigg v. Clay, 88 Va. 330, 13 S.E. 434, 29 Am. St. Rep. 723.
Contract Contemplating Resale. -- Where a seller contracts to sell and deliver goods within a specified time, knowing at the time that the buyer has agreed to deliver the same to a subpurchaser at a fixed date, and the seller fails to deliver in time, he is liable to his buyer for the loss of profits which the latter would have made on a resale to the subpurchaser if the seller had fulfilled his contract, and for damages which the buyer was compelled to pay to the subpurchaser caused by the failure of the seller to deliver the goods within the time agreed upon, when the profits and damages paid are reasonable. Perry Tie, etc., Co. v. Reynolds, 100 Va. 264, 40 S.E. 919.
Demurrage and Dead Freight Paid by Buyer. -- So also, where a buyer of goods made a charter party, agreeing to pay demurrage for delay beyond the time specified for delivery, and also for the payment of dead freight, and he was compelled to pay both in consequence of the seller's failure to deliver the goods within the time and in the quantity stipulated for, it was held that the buyer could recover from the seller the amount paid as demurrage and dead freight, especially when the vessel during the delay, was not used for other purposes, but kept waiting at the point of delivery ready to receive the goods, because of the assurance and representations of the seller that they would be delivered in a short time. Perry Tie, etc., Co. v. Reynolds, 100 Va. 264, 40 S.E. 919.
VI. RIGHTS OF BUYER.
1. Inspection. -- Where a contract for the sale of goods provided that the buyer might inspect them before paying the purchase money, but that all disputes should be arbitrated, it was held that if the buyer, after inspecting the goods, rejects them without submitting the question of quality to arbitration, the seller might receive back the goods without being liable for damages because of their quality. Baer's Sons Grocer Co. v. Cutting Fruit Packing Co., 42 W.Va. 359, 26 S.E. 191.
The maxim caveat emptor does not apply to a sale of goods where the buyer has no opportunity for inspection. Hood v. Bloch, 29 W.Va. 244, 11 S.E. 910.
2. Rescission. -- A buyer of goods who has the right to rescind a contract of sale, must rescind in toto ; he cannot keep part of the goods, and return the remainder, without becoming liable for the whole, Manss-Bruning Mfg. Co. Prince, 51 W.Va. 510, 41 S.E. 907.
A purchaser of goods cannot keep a part of them, and return the remainder, and defeat payment for them according to the contract on the ground that the part returned were not of the agreed quality or make. Manss-Bruning Mfg. Co. v. Prince, 51 W.Va. 510, 41 S.E. 907. See monographic note on " Rescission, Cancellation and Reformation," appended to Chamberlaine v. Marsh, 6 Munf. 283.
VII. STOPPAGE IN TRANSITU.
In case of a sale of personal property not executed by delivery, but to be consummated by a delivery at another place, although in consequence of earnings paid, or otherwise, the property is so vested in the buyer that on complying or offering to comply with the contract on his part, he may recover the sum from the seller or his agent; yet, until delivery, and while the goods are in transitu, the seller may, on the buyer becoming bankrupt, or being likely to be so, arrest the goods, or order his agent to arrest them, which order, operating as an indemnity to the agent in addition to that arising from his possession of the goods, will be his guarantee for refusing to deliver them, though the agent might, under circumstances circumstances, also have a right to demand other security from his principal, which it would be incumbent on him forthwith to give, under pain of a right in the agent to go on and execute the contract by delivery. Howatt v. Davis, 5 Munf. 34.
And if a factor or agent, having sold goods belonging to his principal, be ordered by him while they are yet in transitu not to deliver them to the buyer, of whose solvency doubts are entertained, but he delivers them notwithstanding such order, and without demanding security for his indemnity, the principal is entitled to an action against him in case the buyer should prove insolvent. Howatt v. Davis, 5 Munf. 34.
VIII. ACCEPTANCE OF GOODS.
1. Duty to accept -- If the goods ordered and the goods sent correspond in quality and quantity, the buyer is bound to accept them, and if he refuses, the rights and remedies of the seller are just as complete as if there had been a full and formal acceptance, and he may maintain an action on the contract against the buyer for the damages he has sustained for the failure of the buyer to comply with his contract. Bartholomae v. Paull, 18 W.Va. 771; Haxall v. Willis, 15 Gratt. 434 at 451; McCormick v. Hamilton, 23 Gratt. 561.
2. Unreasonable Delay. -- Moreover, if the buyer delays unreasonably in accepting the goods, he is liable for damages sustained by the seller, although guilty of no deception or fraud. Alleghany Iron Co. v. Teaford, 96 Va. 372, 31 S.E. 525.
3. Agent May Accept for His Principal. -- Proctor v. Spratley, 78 Va. 254.
4. Delay in Rejection -- A sale will be implied, where the person receiving the goods does not within a reasonable time repel the implication by returning the goods or notifying the seller that he will not accept them, and this whether he ordered the goods or not. Bartholomae v. Paull, 18 W.Va. 771; Thompson v. Douglass, 35 W.Va. 337; 13 S.E. 1015.
Question of Fact. -- But what is a reasonable time for a buyer to return goods or notify the seller that he will accept them, is a question of fact to be determined by the jury according to the circumstances of each case. Bartholomae v. Paull, 18 W.Va. 771; Thompson v. Douglass, 35 W.Va. 337, 13 S.E. 1015.
5. Acts of Ownership.
a. In General. -- Receipt of goods by a buyer will not be a binding acceptance if any act be done by the buyer which he would have no right to do unless he were the owner of the goods. Manss-Bruning Shoe Mfg. Co. v. Prince, 51 W.Va. 510, 41 S.E. 907. See post, this note, " Sales by Sample." For example, although goods are not ordered, still a sale will be implied, where he receives them and deals with them as his own, or treats them in a way inconsistent with a recognition of another's ownership. Bartholomae v. Paull, 18 W.Va. 771; Thompson v. Douglass, 35 W.Va. 337, 13 S.E. 1015.
Likewise, although a buyer of goods countermands his order because they are delivered after the stipulated date, he must nevertheless pay for them, if he takes them from the railroad depot to his store, opens the boxes containing them, and examines them or does any act which only an owner can do. Manss-Bruning Mfg. Co. v. Prince, 51 W.Va. 510, 41 S.E. 907.
b. Permitting Third Person to Convert Goods. -- Where one send goods to an another, and the latter disclaims to have purchased them, but permits a third person to take them and convert them to his own use, this will make him liable as purchaser, although he may have allowed them to be taken by mistake. Bartholomae v. Paull, 18 W.Va. 771; Thompson v. Douglass, 35 W.Va. 337, 13 S.E. 1015.
6. Acceptance as Waiver of Late Delivery. -- Where goods are delivered after the stipulated date, the buyer must absolutely refuse to accept them if he wishes to insist upon the lateness of delivery, therefore, if he receives them and exercises acts of ownership over them, as by paying freight, taking the goods from the depot and examining them, or, a fortiori, by paying the price, he will be held to have waived the objection that the goods had come behind time. Manss-Bruning Shoe Mfg. Co. v. Prince, 51 W.Va. 510, 41 S.E. 907; Reid v. Field, 83 Va. 26, 1 S.E. 395.
Where the goods ordered are shipped so late in the season that the buyer refuses to accept them, and the seller replies offering to give the buyer an extra credit if he will accept them, but the buyer does not in any way reply to such offer in a reasonable time, and does not reship or in any way attempt to return the goods to the seller, the buyer will be presumed to have assented to the seller's offer, and to have accepted the goods. Ford v. Friedman, 40 W.Va. 177, 20 S.E. 930.
But an acceptance by the buyer of goods delivered at a time subsequent to that named in the contract for the delivery does not constitute a waiver of the buyer's claim for damages arising from the delay, especially when the conduct of the parties shows an intention on the buyer's part not to waive his rights to such damages. Perry Tie, etc., Co. v. Reynolds, 100 Va. 264, 40 S.E. 919.
7. Remedies of Seller for Nonacceptance of Goods.
Where Contract Is Executory. -- Where a contract of sale is executory, and the title and possession still remain in the seller, his remedy against the buyer, who wrongfully refuses to pay for and accept the goods, is an action of assumpsit on a special count to recover damages for the breach of the contract. American Hide, etc., Co. v. Chalkley, 101 Va. 458, 44 S.E. 705.
Where Contract Is Executed. -- But where the title has passed, and the buyer refuses to pay for the goods, the remedy of the seller is an action for the agreed price. American Hide, etc., Co. v. Chalkley, 101 Va. 458, 44 S.E. 705.
If the buyer of goods refuses to accept them when tendered according to the contract of sale, the seller may elect to rescind the contract and keep or dispose of the goods for his own use, or to let it remain in full force and hold the buyer liable for the price of the goods and all damages arising from this breach of the contract. If he elects to let the contract remain in full force, he may either bring his action for the price of the goods when it is due and payable, or he may sell the goods, applying the net proceeds of sale to the credit of the buyer on account of the money due by him, and bring an action against him to recover the balance. Rosenbaums v. Weeden, 18 Gratt. 785, 98 Am. Dec. 737.
Unreasonable Delay. -- Where there is an unreasonable delay on the part of the buyer in accepting goods, the seller may recover damages sustained by him for loss resulting from such unreasonable delay, and also the profits he would have realized if he had been permitted to perform it fully. This is not a double recovery. Alleghany Iron Co. v. Teaford, 96 Va. 372, 31 S.E. 525.
a. Accrual of Cause of Action.
Anticipatory Breach. -- Where the buyer refuses to accept goods that he has ordered, the seller may at once sue for damages for breach of the contract, without waiting for the period for the delivery of the goods to elapse, and without tender of them. James v. Adams, 16 W.Va. 245; Pancake v. George Campbell Co., 44 W.Va. 82, 28 S.E. 719.
Where there is a sale of personal property, to be paid for in installments, and the buyer fails to meet any one of the installments, whereupon the seller demands possession of the property, which the buyer refuses to surrender, the seller may at once bring an action against the buyer, without waiting until the time in which, by the terms of the contract, all the purchase money was to have been paid, even though in such contract the property is said to have been hired to the buyer for that length of time. McGinnis v. Savage, 29 W.Va. 362, 1 S.E. 746.
b. Measure of Damages. -- Where the contract of sale is executory, and the title and possession remain in the seller, the measure of damages for a refusal of the buyer to accept and pay for the goods, is the difference between the contract price and the market value of the goods at the time and place of delivery. Weltner v. Riggs, 3 W.Va. 445; Hall v. Pierce, 4 W.Va. 107; Smith v. Snyder, 77 Va. 432; James v. Adams, 16 W.Va. 245; Alleghany Iron Co. v. Teaford, 96 Va. 372, 31 S.E. 525.
Under a contract to pay for a given quantity office per year, whether the whole quantity is accepted or not -- the same to be delivered from day to day as the purchaser may require -- the seller is not entitled to recover for the difference between the quantity contracted for and that actually accepted where the failure to accept more was due to the inability of the seller to furnish the ice as the parties had agreed. Richmond Ice Co. v. Crystal Ice Co., 99 Va. 285, 38 S.E. 141.
c. Resale by the Seller. -- When the buyer refuses to accept goods tendered according to the contract of sale, the seller may resell them at any time and in any state of the market and hold the buyer liable for any loss sustained; therefore, the fact that the seller delayed the resale of the goods for an unreasonable time upon a falling market, will not prevent recovery from the buyer of the difference between the contract price and that obtained at the resale. Rosenbaums v. Weeden, 18 Gratt. 785, 98 Am. Dec. 737.
Notice of Intention to Resell. -- Where a contract of sale is executory, and the buyer refuses to accept and pay for the goods, the seller should give him notice that he intends to sell, and hold him responsible for the loss.
This notice, it will be observed, is not a notice of resale, but a notice that the seller will assert his right of resale, and bind the buyer by the price obtained. American Hide, etc., Co. v. Chalkley, 101 Va. 458, 44 S.E. 705, citing Rosenbaums v. Weeden, 18 Gratt. 785, 98 Am. Dec. 737.
Notice of Time and Place of Resale. -- But where the seller elects to sell the goods and hold the buyer liable for the loss, it is not necessary that he should give notice to the buyer of the time and place of sale, and though he gives such notice, he may postpone the sale to another day, if that seems judicious. Rosenbaums v. Weeden, 18 Gratt. 785, 98 Am. Dec. 737.
Measure of Damages on Resale. -- If the seller choses to consider the property as the buyer's and resells it, using reasonable diligence to obtain its actual value at the time the contract is broken, then the measure of his recovery is the difference between the contract price of the goods and the net price which they produce at a resale, fairly made, after deducting all expenses incurred by the seller in taking care of the goods and selling them. James v. Adams, 8 W.Va. 568; American Hide & Leather Co. v. Chalkley 101 Va. 458, 44 S.E. 705.
d. Lien. -- Where there is a sale of personal property to be paid for on delivery, the seller has a lien for the price so long as the property remains in his possession, but the transfer or surrender of possession by the seller destroys the lien. James v. Bird, 8 Leigh 510, 31 Am. Dec. 668.
Waiver. -- This lien, however, may be waived by the seller. Neff v. Baker (Va.), 4 S.E. 620.
Equitable Lien. -- But the seller of personal property has no implied or equitable lien on the property for the purchase money. Williams v. Gillespie, 30 W.Va. 586, 5 S.E. 210; James v. Bird, 8 Leigh 510, 31 Am. Dec. 668; McCandlish v. Keen, 13 Gratt. 615 at 629.
IX. FRAUDULENT SALES.
Where one buys property on credit with the positive intention not to pay for it, this is a fraudulent purchase, whether he makes false representations as to his ability to pay or not. Miller v. White, 46 W.Va. 67, 33 S.E. 332. See Wickham v. Lewis, 13 Gratt. 427; monographic note on " Fraudulent and Voluntary Conveyances" appended to Cochran v. Paris, 11 Gratt. 348.
But mere insolvency or inability to pay for property purchased will not render the sale fraudulent on the purchaser's part, if he expects and intends to pay, and has reasonable grounds for expecting to be able to pay. On the other hand, however, if, in addition to insolvency, he makes false statements of his pecuniary circumstances or business, or his ability to pay, calculated to induce the seller to believe he will be paid, the purchase is fraudulent. Miller v. White, 46 W.Va. 67, 33 S.E. 332.
The intention of the purchaser of property not to pay for it may be inferred by the jury from the circumstances, actions and conduct of the purchaser, not only in respect to the sale in question, but any other contemporaneous transactions. Miller v. White, 46 W.Va. 67, 33 S.E. 332.
X. SALES BY SAMPLE.
In General. -- To authorize a jury to find that a sale is a sale by sample, the evidence must satisfactorily show that the parties contracted solely with reference to the sample exhibited. In other words, unless both parties deal with the sample with the mutual understanding that the bulk is like the sample, the sale is not a sale by the sample. Proctor v. Spratley, 78 Va. 254.
Acts of Ownership. -- But even though a sale is by the sample, still if either the buyer or his agent, with full knowledge of the nonconformity of the bulk with the sample, exercises ownership over the goods as by offering them for sale, this acceptance is so far binding that the buyer cannot rescind either for nonconformity or for fraud. Proctor v. Spratley, 78 Va. 254.
Place for Comparing Bulk with Sample. -- And where goods are sold by the sample, the place and time of delivery is the place and time in which the comparison between the bulk and sample should be made and the goods accepted, and is also the place and time of rejection for the nonconformity of the bulk with the sample. Proctor v. Spratley, 78 Va. 254.
Warranty. -- If a sale is not a sale by the sample, there can be no warranty of quality implied, and the maxim caveat emptor applies. Proctor v. Spratley, 78 Va. 254.
XI. BONA FIDE PURCHASERS.
1. Trustees in Deeds of Trust or Assignments. -- To secure creditors are unquestionably purchasers for value; but whether they are bona fide purchasers without notice depends on the facts of the case. Chapman v. Chapman, 91 Va. 397, 21 S.E. 813; Douglass Merchandise Co. v. Laird, 37 W.Va. 687, 17 S.E. 188; Oberdorfer v. Meyer, 88 Va. 384, 13 S.E. 756; Wickham v. Lewis, 13 Gratt. 427, and note.
2. Purchaser from Fraudulent Buyer. -- Although a sale and delivery of goods is secured by the false and fraudulent representations of the buyer, yet the title vests in him until the seller has done some act to disaffirm the transaction; and therefore if the buyer transfers the property to an innocent purchaser for value before disaffirmance, the seller cannot recover the property. Williams v. Given, 6 Gratt. 268; Wickham v. Lewis, 13 Gratt. 427; Jones v. Christian, 86 Va. 1017, 11 S.E. 984; Oberdorfer v. Meyer, 88 Va. 384, 13 S.E. 756.
Thus, where a chattel is sold for cash on delivery, and the seller delivers it without exacting payment, he cannot recover the property from an innocent purchaser from the buyer before payment. Old Dominion Steamship Co. v. Burckhardt, 31 Gratt. 664.
XII. CONDITIONAL SALES.
1. Definition. -- A conditional sale is a contract by which the owner parts with the title of the thing upon some specified condition, either precedent or subsequent. Baldwin v. Van Wagner, 33 W.Va. 283, 10 S.E. 716. For example, where a seller agrees to sell certain personal property to the buyer, and delivers possession, but expressly retains title until the payment of the purchase price, it is a conditional sale. McComb v. Donald, 82 Va. 903, 5 S.E. 558; McGinnis v. Savage, 29 W.Va. 362, 1 S.E. 746. See Leavell v. RobinsonLeigh 161, holding a transfer of bank stock to be a conditional sale.
2. Payment in Installments. -- Where personal property is sold to be paid for by the party receiving it in installments at specified times, and when so paid for it is to become his property, but that the title is to remain in the original owner until all the purchase money has been paid, this constitutes a familiar example of a conditional sale. McGinnis v. Savage, 29 W.Va. 362, 1 S.E. 746.
And it is not an uncommon thing for parties to word such conditional sale as though it were a leasing or hiring of the property; the object of this is frequently to make such conditional sales valid, not only between the parties, but also, if possible, against innocent purchasers from, and creditors of, the buyer. But the courts, in determining the real character of the contract, will always look to its purpose, rather than the name given to it by the parties, and will hold that to be a conditional sale which is such in law or fact, though the parties termed it a lease. McGinnis v. Savage, 29 W.Va. 362, 1 S.E. 746; Baldwin v. Van Wagner, 33 W.Va. 283, 10 S.E. 716. See Arbuckle v. Gates, 95 Va. 802, 30 S.E. 496.
In Huffard v. Akers, 52 W.Va. 21, 43 S.E. 124, the court distinguished McGinnis v. Savage, supra, and Baldwin v. Van Wagner, supra, on the ground that in those cases the agreement starts out calling it a lease, whereas in the case at bar it was called a sale.
3. Sale or Return. -- Where the condition of the sale is that the property may be returned if it does not prove " satisfactory" to the buyer, or if the buyer is not satisfied with it after trial, this is a sale on condition subsequent; that is, the title passes with the possession, but to be divested if the condition is not performed and the property returned. In such a sale the buyer must in fact be satisfied, and if he is dissatisfied however unreasonable or groundless his dissatisfaction may be, he may return the property. Osborne v. Francis, 38 W.Va. 312, 18 S.E. 591, 45 Am. St. Rep. 859.
For example, one who buys a harvesting machine called a " binder," upon the condition that if it does not work to his satisfaction he may return it, has an absolute right to reject the machine if he so wills, without assigning any reason. Osborne v. Francis, 38 W.Va. 312, 18 S.E. 591, 45 Am. St. Rep. 859.
If a slave be sold upon condition that the buyer may return him in a given time, and while in the buyer's possession, but not through his neglect, he be disabled by cold, so as to be of little value, the buyer may refuse to keep him, and is not responsible for the loss, unless he expressly agreed to be so liable. But the buyer is responsible, without such agreement, for ordinary neglect; that is, if he failed to take such care of the slave as any man of common prudence and capable of governing his family, takes of his own concerns. Williams v. Moore, 3 Munf. 310.
Bad Faith in Refusing to Accept. -- Where it is provided in the contract of sale that the article to be made shall be satisfactory to the buyer, he may arbitrarily decline to accept it and his reasons for so doing cannot be investigated, unless he acted fraudulently and in bad faith. Barrett v. Coal & Coke Co., 51 W.Va. 416, 41 S.E. 220; Carpenter v. Virginia-Carolina Chemical Co., 98 Va. 177, 35 S.E. 358; Osborne v. Francis, 38 W.Va. 312, 18 S.E. 591, 45 Am. St. Rep. 859.
But in order to make out a charge of bad faith on the part of the buyer in refusing to accept goods which he agreed to accept, if they proved satisfactory, the seller must establish bad faith clearly and distinctly. Virginia-Carolina Chemical Co. v. Carpenter, 99 Va. 292, 38 S.E. 143.
4. Sale on Trial. -- But sometimes the chattel is taken with the understanding that the buyer is to try it before the purchase shall take full effect: this is a sale on a condition precedent to buy if satisfied; that is, the title does not pass until the condition is fully performed, although the possession is delivered. In either the bargain of sale or return, and the sale on trial, however, the buyer may peremptorily return within the time without giving any reason, if he acts honestly. Osborne v. Francis, 38 W.Va. 312, 18 S.E. 591, 45 Am. St. Rep. 859.
5. Recordation of Conditional Sales.
In Virginia. -- Formerly in Virginia, conditional sales, though unrecorded, were valid as against purchasers from and creditors of the buyer; and therefore a subsequent purchaser, without notice from the buyer, acquired no title against the original seller. McComb v. Donald, 82 Va. 903, 5 S.E. 558; Old Dominion Steamship Co. v. Burckhardt, 31 Gratt. 664.
But by statute in Virginia conditional sales, reserving title to the seller, must now be recorded to be good against creditors and bona fide purchasers. Therefore, if a seller of goods, by an unrecorded bill of sale, delivers possession, but retains title until the price is paid, such sale is void as to creditors of and purchasers for value and without notice from the buyer. Va. Code 1887, § 2462; Hash v. Lore, 88 Va. 716, 14 S.E. 365; Callahan v. Young, 90 Va. 574, 19 S.E. 163; Arbuckle v. Gates, 95 Va. 802, 30 S.E. 496.
Acknowledgment. -- But mandamus will not lie to compel the clerk of the court to record a conditional sale, unless it is proved or acknowledged as required by law. Callahan v. Young, 90 Va. 574, 19 S.E. 163.
In West Virginia. -- And in West Virginia, in order that conditional sales may be good as against third parties, notice of a reservation of title to the goods sold must be recorded in the clerk's office of the county court of the county where the property is. W.Va. Code, ch. 74, § 3; Baldwin v. Van Wagner, 33 W.Va. 283, 10 S.E. 716; Hyer v. Smith, 48 W.Va. 550, 37 S.E. 632; Troy Wagon Co. v. Hutton, 53 W.Va. 154, 44 S.E. 135.
Accordingly it has been held that goods bought under a conditional sale and placed on the leased premises before the sale is recorded, are liable to distraint for rent. Huffard v. Akers, 52 W.Va. 21, 43 S.E. 124.
Delivery to Buyer Necessary. -- But the statute does not apply unless possession of the property be delivered to the buyer. Webster Lumber Co. v. Keystone Lumber Co., 51 W.Va. 545, 42 S.E. 632.
Acknowledgment of Notice. -- Moreover, as the statute contains no provision requiring acknowledgment as a prerequisite to recordation, this notice of reservation of title may be recorded though unacknowledged. Hatfield v. Haubert, 51 W.Va. 190, 41 S.E. 144; Troy Wagon Co. v. Hutton, 53 W.Va. 154, 44 S.E. 135. The rule is otherwise in Virginia. Callahan v. Young, 90 Va. 574, 19 S.E. 163.
Miscellaneous Record Book. -- Where a contract selling chattels, and reserving title until payment, is left with the county clerk to be recorded, the record is complete, and the fact that it is recorded in the " miscellaneous record book" will not in validate its recordation. Troy Wagon Co. v. Hutton. 53 W.Va. 154, 44 S.E. 135.
Contracts of Hiring. -- As the West Virginia Code, ch. 74, § 3, requires that conditional sales, but not contracts of hiring, be recorded in order to prevail against the creditors of and purchasers from the buyer, it will be readily seen that the question whether the transaction is a conditional sale or a hiring is important in controversies between the creditors or purchasers of the person having possession of the property and the persons claiming to be the owners of it. But see opinion of Hinton, J., in McComb v. Donald, 82 Va. 903, 5 S.E. 558 at 560. For example, in Baldwin v. Van Wagner, 33 W.Va. 283, 10 S.E. 716, a piano was rented for a stipulated amount per month, the owner agreeing that when the value of the piano was paid in such monthly payments the title should vest in the renter. It was held that this agreement constituted a sale upon a condition precedent, and therefore void as to the creditors of the renter unless recorded.
[*]For monographic note on Sales, see end of case.
[*]Judges Coalter and Green, absent.