R. F. Darrah Lumber Co. v. McGowin Lumber Co.

SAMFORD, J. The facts of this case present a clear case of conversion. The judge trying the case without a jury evidently proceeded upon the theory that no title to the lumber passed to the plaintiff, and therefore the plaintiff was without right of action against the defendant. [1] If the contract of purchase had remained as originally made, the title to the lumber would not have passed to the plaintiff until it had been manufactured in accordance with the agreed specifications and delivered f. o. b. Lackawanna, N. Y. But the parties to the original agreement changed or modified the contract oí purchase, and, acting upon the modified agreement, Grace delivered the lumber to the railroad company, consigning the shipment to “Andalusia Milling Company,” for remilling and' reshipment to plaintiff at Lackawanna, N. Y., thereby constituting defendant one of the agencies whereby plaintiff was to have the lumber as originally contracted. At the time of delivery to the railroad, Grace took a bill of lading describing the lumber, designating the manner of handling and its ultimate destination, and naming the plaintiff as the ultimate consignee. This bill of lading became the “document of title,” in which the duties of intervening agencies were plainly set forth. Grace then drew a draft on plaintiff for the amount of the purchase price agreed to be paid under the modified agreement, which draft was paid upon presentation to the plaintiff, and the bill of lading was delivered to him. The defendant, by accepting the lumber in accordance with the terms of the bill, of lading, accepted the duties of an intermediate agency, and indeed the defendant so recognized this obligation from July 16tb*to xVugust 24th, as is evidenced by several letters from defendant to the plaintiff written during that period. Grace had parted with the possession of the lumber and, after shipment and tiie payment of the, draft with bill of lading attached, had no right to its disposition other than had been already designated in the bill of lading under which this defendant received it from the railroad. The effect of the modified contract was to vest the plaintiff with the title to the lumber on its delivery to the railroad company and the payment of a part of the original agreed price with an extension of credit for the balance after deducting the cost of delivery at Lackawanna, N. Y. It appearing by the terms of the modified contract and its execution that it was the intention of the parties that the property should pass to the buyer, the title to the lumber was effectually in the plaintiff, regardless of whatever other claim Grace may have had against the plaintiff, or whatever further duties he might owe to the plaintiff with respect to the lumber. The foregoing principles are amply supported by the following authorities: Shealey & Finn v. Edwards, 73 Ala. 175, 49 Am. Rep. 43; Hutchinson v. Hunter, 7 Pa. 146; Clemens v. Davis, 7 Pa. 263; Boswell v. Green, 25 N. J. Law, 390; Allen v. Maury, 66 Ala. 10; McCormick & Richardson v. Joseph & Anderson, 77 Ala. 236; 35 Cyc. 321; Cook & Laurie Con. Co. v. Bell, 177 Ala. 618, 59 South. 273. [2] We are familiar with the rule asserted by the appellee and sustained by the case of Robinson v. Hirschfelder, 59 Ala. 503, to the effect that a contract is only an agreement to • sell and does not become a sale if any term in which the seller must co-operate, or which *258 imposes a liability or duty on him, remains to be performed, such as weighing, measuring, inspecting, etc. But there is nothing in the case cited in conflict with the authorities which hold that an executory contract to sell and deliver a completed article may be changed or modified so as to pass title to the article before its manufacture is completed. The defendant in this case, under the facts as set out in the record, is guilty of a conversion, and the plaintiff, holding the title, may maintain an action against him. The court erred in its judgment. The judgment of the court is therefore reversed, and the cause is remanded. Reversed and remanded.