Sanger v. . Waterbury

Parker, J. The appellant contends that the title to the coffee in controversy did not pass to J. K. Huston & Co., and that, therefore, the transfer to Waterbury & Force did not vest in them the title or the possession. The sale is admitted. But as the coffee had to be weighed in order to ascertain the amount to be paid to plaintiffs, it is insisted that the *374 title remained in the plaintiffs. In aid of this contention is invoked the rule that where something remains to be done by the seller to ascertain the identity, quantity or quality of the article sold, or to put it in the condition which the contract requires, the .title remains in the vendor until the condition be complied with. The appellant cites a number of authorities which he urges so apply this rule as to make it applicable to the case here presented. It is said in Groat et al. v. Gile (51 N. Y. 451), that “ this rule has refei’enee to a sale, not of specific property clearly ascertained, but of such as is to .be sepaz-ated frozn a larger quantity, and is necessary to be identified before it is susceptible of delivery. The rule or principle does not apply where the number of the particular articles sold is to be ascei’tained for the sole purpose of determining the total value thereof at certain specified rates or a designated fixed price.” This distinction is l’ecognized and enforced in Crofoot v. Bennett (2 N. Y. 258; Kimberly v. Patchin, (19 N. Y. 330; Bradley v. Wheeler (44 id. 495). In Crofoot v. Bennett (supra), the court say: “ If the goods sold are clearly identified, then, although it may be necessary to zzumbez*, weigh or measure them, in order to ascertain what would be the price of the whole at a rate agreed upon between the parties, the title will pass.” This expression of the court is cited with approval in Burrows v. Whitaker (71 N. Y. 291), in which case, after a full discussion of the authoi’ities, the court appi'oved the rule as laid down in Groat v. Gile (supra). Eow, applying that rule to the facts in this case, nothing remained to be done in order to indentify the goods sold, because while out of a larger lot two hundred and thirty-eight bags of coffee wei-e disposed of, nevei-theless, as appeal’s from the complaint and the testimony adduced, the bags were so marked that there was no difficulty about indentifying the particular bags sold. There remained, therefore, nothing to be done except to weigh the coffee for the purpose of ascertaining the pui’chase-price. Tor whether the two hundred and thirty-eight bags of coffee should prove to weigh more or less than the parties anticipated was not of any consequence. *375 Whatever should prove to be for that number of pounds, J. K. Huston & Co. had agreed to pay. This case, therefore, does not come within the rule contended for by the appellant, but instead is governed by the principle enunciated in Groat v. Gile. Having reached the conclusion that the title and the possession passed to J. K. Huston & Co., it becomes unnecessary to consider any of the other questions discussed, for the plaintiff is without title upon which to found the right to maintain an action. The judgment appealed from should be affirmed. All concur. Judgment affirmed.