Dyer v. Libby
Nathaniel Dyer v. David T. Libby
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Opinion of the Court
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Waltost, J.
The defendant moves to have the verdict set aside, as against evidence. He contends that the evidence is insufficient to warrant the jury in finding that the hay sued for was delivered. As the action is in form for goods sold and-delivered, it was essential for the plaintiff to prove an actual delivery to, and acceptance by, the defendant, or the action could not be maintained. It appears that the hay was taken from the plaintiff’s mow by men employed and paid by the defendant. It was pressed, put into bands, weighed, and branded with the defendant’s name. These acts were sufficient to constitute a delivery, if accompanied by the requisite intention of both parties that the property should then pass.
Was the evidence sufficient to warrant the jury in finding that it was the intention of the parties that the property should then pass? Weighing, and marking with the purchaser’s name, have always been regarded as very significant facts bearing upon the question of delivery. In this case the pressing and weighing and branding was paid for by the defendant, and there does not appear to have been any arrangement by which this expense could, in any event, be charged to the plaintiff. Why should the defendant incur this expense, with no provision for reimbursement, if he did not understand that the hay was his? Why should the plaintiff *48 permit the hay to be branded with the purchaser’s name, if he did not understand that the property had passed ? All the terms and conditions of sale had been previously agreed upon. Can the proposition be maintained that the evidence was insufficient to authorize the jury to find a delivery ? That a verdict finding such a delivery, is so clearly against evidence that it cannot be permitted to stand ? We think not. They probably found that the capture of Richmond and the surrender of Lee caused a sudden decline in the price of hay, and that this was the true reason why the defendant sought to escape from the consequences of the bargain he had made, and not the want of a delivery.
The fact that it was one of the conditions of the sale, that the plaintiff should haul the hay to the depot, is not inconsistent with the proposition that it might have been delivered, so as to become the property of the defendant, at' the barn. And whether the plaintiff had fully performed his part of the contract, or if not, whether he was prevented from so doing through the fault of the defendant, wex*e facts to be determined by the jury, under proper instructions from the court as to the requirements of the law; and, as nothing appears to the contrary, it is to be presumed that proper instructions were given upon these points.
The presiding judge instructed the jury, that if the defendant, by himself or servant, with the knowledge and consent of the plaintiff, took the hay sued for from the plaintiff’s mow, and pressed it, and branded it with his own name, and the plaintiff understood and intended that these acts should divest him of all ownership in the hay, and that the title should be thereby absolutely and unconditionally vested in the defendant; and the defendant so understood it, and intended, by these acts, to become owner of the hay, and to have the title thereby absolutely and unconditionally vested in him, then no other or further delivery was necessary to take the contract of sale out of the operation of the statute for the prevention of frauds and perjuries, and enable the plaintiff to maintain an action for goods sold and delivered; and that whether such was the understanding and intention of the parties was a question of *49 fact, to be determined by tlie jury in view of all the evidence in the case bearing upon the question.
We think these instructions were appropriate and correct.
Motion and exceptions overruled. Verdict on the Judgment.
AppletoN, C. J.; DiciceRSON, Baheows, and DaNFORTH, JJ., concurred. KeNT and Taplet, JJ., dissented.
Dissent
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Kent, J., gave this opinion.
KeNT, J.,
dissenting. Assuming the law of the judge (and I do not dissent from it), I am hard pressed by the objection that there was no sufficient proof of delivery, to take the case out of the statute. It is plain, from the plaintiff’s own testimony, that the bargain was for a sale of the hay, and the price was twenty-five dollars a ton delivered by Dyer at Freeport depot.
But before it was to be hauled it was to be screwed, and the agreement was that the plaintiff was to do a part of this and the defendant a part. Libby was to have it screwed, to furnish a press, and Dyer was to furnish withes and binders.
All this was done; but is there in this sufficient evidence of a delivery of the property ? Must there not be such a delivery a vests property fully and beyond all liens ?
The marking of the bundles, without orders, by Libby’s men, is, at best, a very equivocal act: and would have been, even if it had been done by defendant himself.
A sale is incomplete when anything remains to be done by either party. Here, clearly, the hay, as part of the contract, was to be hauled to Freeport, and the plaintiff had a right to retain it until the price was paid. Is there anything from which a fair inference can be drawn that he intended to divest himself of all ownership in the hay ? all lien upon it for his pay, and to transfer the absolute title ?
Still less is there evidence of what the ruling required as to defendant. Did he, thereby, understand and assent and intend that *50 the absolute title should at once vest in him, and he be at once liable to pay twenty-five dollars a ton at the barn, and before any hauling, and be left to pursue his remedy at law against Dyer for not hauling the hay, as an independent and distinct agreement.
Could it have been held, on attachment, as defendant’s while in the barn ? If burned up there before hauling, would it have been defendant’s loss ?
If the agreement had been, only, that Libby was to give, say, twenty dollars a ton for the hay in the barn and on the mow, and was to screw it there at his own expense, or take it away without screwing, as he thought best, and if he afterwards came by himself or servants and took the hay away, or screwed it there, I should have no doubt that it would have been a sufficient delivery or taking possession. But that -was not this bargain. The hay was to be delivered at another place, as part of the bargain. I grant that it might probably have been delivered at the time of bargain, so as to bind the bargain. But how can it be said, that where there is a contract for a sale of hay, which, by its terms, is not, and cannot be performed until it is hauled to another place, and the buyer is to do something in conjunction with the seller to prepare it for transportation, and does that thing, leaving it for the seller to haul it to the place of delivery agreed upon, that this is such a delivery as takes the case out of the statute.
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