Warren v. Buckminster

If, upon a sale of chattels, any thing remains to be done, as between the vendor and vendee, before the goods are to be delivered, a present right of property does not attach in the vendee. Where goods are sold by number, weight or measure, the sale is incomplete until the specified property be separated and identified. Where goods sold are mixed with others, and are not separated from the general stock of the seller, they must be designated or separated from the stock, or quantity with which they are mixed, before the property can pass. . A. made a bargain with B. for fifteen of the best sheep in B.’s flock; but they were not selected. Held, that the sale was incomplete until they were selected and designated by marking, or separated from the flock. If the buyer of chattels agree to take them from the possession of the seller at a specified time, and does not take them according to the agreement, tile seller may treat the contract as rescinded.

Assumpsit.^ Tbe writ contained two counts, tbe first of which was as follows: “ In a plea of the case, for that the said Buck-minster, at said Keene, on the 26th day of July, 1849, in consideration that the plaintiff, at the instance and request of the said Buckminster, had then and there bought of him a certain number, to wit: fifteen sheep, at and for a certain price then and there agreed upon between them, whereof the plaintiff then and there paid him fifteen dollars, the defendant then aiid there’ faithfully promised the plaintiff well and truly to deliver to him the said fifteen sheep, to be selected by the plaintiff from and out of the defendant’s flock of sheep, whenever the said defendant should be thereto requested; and the plaintiff in fact saith, that although he afterwards, to wit: on the 19th day of September, 1849, at said Sullivan, requested the said defendant to deliver to the plaintiff the said fifteen sheep, and was then and there ready and willing, and offered to pay the said defendant the residue of the price therefor, according to the terms of said sale, and was ready and willing and offered to select the said fifteen sheep from the defendant’s flock of sheep, and accept and receive the same of and from the said defendant; yet the said defendant did not, when requested as aforesaid, or at any time before or since, deliver to the plaintiff the said fifteen sheep, or any part thereof, but wholly refused and still refuses so to do.” The second count was a general one for fifty dollars, money had and received by the defendant to the plaintiff’s use. To the first count the defendant pleaded the general issue. To the second, a tender of $15.28 before suit brought. The plaintiff introduced one Bates as a witness, who testified in substance that somewhere between the 6th and the 10th of October, 1849, the defendant drove him fifteen sheep, which he said Mr. Clarke, the partner of the witness, had ordered him to drive there. Their price was $17.50. Two or three weeks after this, the defendant came to the slaughter-house of the witness, and asked him if the plaintiff had been to see him about the sheep. Witness told him no. Defendant said the plaintiff had been after the sheep and found that they were gone, and was angry and threatened to sue him. Witness asked him how the matter stood between them, and defendant said he sold the sheep to the plaintiff, and he was to take them away at a specified time, which the witness could not recollect; that at the time agreed upon he got them home from his pasture and turned them into his lot at his house; that he kept them about his buildings four or five weeks; that they plagued him and got into his corn; that the plaintiff did not come for them, and he sold them to Mr. Clarke. He said the plaintiff paid him $15 for the sheep. The plaintiff rested his case upon the testimony of this witness. The defendant then introduced evidence tending to show that he made the tender, as set forth in his plea, and that it was sufiScient to cover the fifteen dollars and interest thereon. This point was not particularly contested. The defendant then introduced as a witness one Roswell C. Nourse, who testified, in substance, that he lived in Sullivan, about five miles from the defendant’s house; that the defendant had a pasture adjoining the land of the witness; that about the 25th of July, 1849, he heard a conversation between the parties, near the house of the witness. They were on the fence which divided the defendant’s pasture from the witness’ mowing. The defendant’s flock of sheep were called up. Plaintiff said: What will you take for fifteen of them. Defendant said: I don’t know; when will you take them away ? Plaintiff said he would take them the last of August; that he had other sheep going at that time and he wanted these to go with them. Defendant said that unless the plaintiff would take them the last of August he would not sell them to him, for he was short of feed; that he would not sell them to any one who would not take them at that time. Plaintiff agreed to take them the last of August, and if he did not take them then, he said he did not want them at all, for he would 'not come round there for them. Plaintiff was to have fifteen of the best of them. He said he would take them either in the pasture or in the barn of the witness. Defendant said that he would not drive them a rod. Plaintiff said that he did not ask him to drive them; he would come himself, or send a man to get them. The sheep were not selected. Witness had the care of them. He did not hear what the price was to be. The defendant also introduced evidence tending to show that about the last of August the plaintiff sent a request to the defendant to get up the sheep on a certain day; that on the day specified the defendant went, to the pasture and got up the flock, and, after waiting there about an hour, he drove them from thence to his house; but the plaintiff did not come after them nor send any one, and having kept them four or five weeks about his buildings, he sold them to said Clarke. The court, among other things, instructed the jury that if they found that the fifteen sheep were ever selected from the flock, and the bargain closed between the parties, their verdict should be for the plaintiff. The court further instructed the jury that it was necessary for the plaintiff to show a selection, either by himself or his agent. To these instructions the plaintiff excepted: 1. Because there was evidence tending to show, under the second count, an absolute sale of the fifteen sheep without any reference to the prior count. 2. Because the evidence of Nourse, by whom the special contract was proved, did not show that the plaintiff was to select the sheep. 8. Because, if the defendant had selected the sheep, the plaintiff might ratify it. The jury having returned a verdict for the defendant, the plaintiff moved to set the same aside and for a new trial, for the reasons set forth in the foregoing exceptions; and the questions arising upon the motion were reserved and assigned to this court for determination.