Bradley v. . Wheeler

It has been established, by the verdict of the jury in this case, upon conflicting evidence, under instructions from the court, to which there was not any exception taken, that a contract was made for the sale by the plaintiffs, and the purchase by the defendants, of the whole cargo of hay, at a specified price per pound (the price for the shipping hay being greater than for the clover); that it was delivered at the place agreed upon, and taken under the charge and control of the defendants; that a part of it was taken into their actual possession; and that nothing was to be done by the plaintiffs to ascertain its quantity, quality, or identity, or to put it in the condition required by the terms of the contract. The General Term refused to set aside that verdict; and it *Page 498 appears, by the case, that there was sufficient evidence to sustain it. The jury were instructed that, if the facts above stated were found by them, then the title to the whole of the cargo passed, and the plaintiffs were entitled to recover. There was no exception to this, or any other, part of that charge; but several exceptions were taken to the refusal of the court to charge as requested, on certain propositions submitted to him for that purpose, and to the rejection of certain testimony offered on behalf of the defendants. It becomes necessary, therefore, to refer such of them as are now relied on, as grounds of reversal. The cargo was, at the time of the negotiation for its sale, on board of a barge lying in the North river, and the defendants on the trial claimed that it was a part of the contract that the plaintiffs should transfer and put it on board of a certain schooner pointed out and designated by the defendants; that it was to be inspected, and that the plaintiffs reserved the right to sell a part of the clover hay; that they were only to take the balance. The plaintiffs, on the other hand, claimed that all they were required to do, in reference to the delivery was to move or "haul" the barge to and alongside of the schooner; that the defendants were themselves then and there to unload the cargo; that the plaintiffs were to do nothing further toward its delivery; that there was an absolute sale of the whole cargo, without any reservation of any part thereof, and without any agreement for its inspection. There was conflicting evidence on those questions. At the close of the testimony, and before the charge, the defendants' counsel requested the court to charge the jury upon nine different written propositions, among which were the following: 1st. An action for goods sold and delivered cannot be sustained where there has not been an actual delivery. 2d. There was in this case no delivery of any of the hay purchased, except that which was placed in the schooner. *Page 499 5th. The rule of law is, that where anything remains to be done to ascertain the quantity or quality, the title does not pass. 9th. That the plaintiffs can only recover for the hay actually delivered on board the schooner. After the charge was given, the counsel again called the attention of the judge to those propositions, and asked him to charge them in the affirmative or negative. The judge thereupon stated that he could not charge the first, second, third or fourth requests, except as already charged; that the fifth was true, if anything remained to be done by the seller, but that he could not charge it in the terms asked, because it was too general; and made a further charge in reference to the eighth, substantially as asked, and said nothing in relation to the rest. The counsel for the defendants specifically excepted to the refusal of the court to charge as requested, as to each of the requests so submitted to the court, and to each of said refusals separately. The exceptions to the third, fourth, six, seventh and eighth requests or propositions are not relied on in the appellants' points. I have not deemed it necessary to set them forth, assuming that they are abandoned. The others will be briefly considered. The first, as an abstract proposition of law, is too broad. An actual delivery of the whole of the property sold is not necessary. Assuming a delivery to be a part of the contract, an actual acceptance of a part in the name of the whole would be sufficient. Nor is such delivery requisite where the sale is complete, and there is a manifest intention to pass the title without it. (See Terry v. Wheeler, 25 N.Y. Rep., 520;Russel v. Carrington, 42 id., 118.) But if it were otherwise, the court in this case charged substantially in conformity to the request. The second involved a question of fact, and was therefore properly refused. The fifth proposition was too general, and the qualification that it was true, if anything remained to be done by the seller, was proper. The ninth was not correct. If the plaintiffs' version of the contract was correct, and that nothing remained to be done *Page 500 by them in or toward its execution, the title passed, and a recovery for the whole cargo was proper. In reference to the other exceptions, it is sufficient, without referring to them specifically, to say that they have been considered, and none of them are well taken. It then only remains to be considered whether the court erred in excluding the defendants' offer of evidence to show that there is a general, well-known custom in the port of New York, that hay should be inspected before delivery. Each of the parties claimed that there was a special contract, and the evidence of the defendants tended to show that it was a part of the contract that the hay should be inspected, and the court charged that if it was, then the title did not pass. It is evident, therefore, that the defendants, according to the testimony introduced by themselves, did not deal in reference to any custom, and there being a special contract shown, no local custom can change its terms, or vary the rights and obligations of the parties under it. But if it was admissible in any case, it could not affect the plaintiffs without proof that they had knowledge or notice of it, and the offer did not, in express terms or by implication, or its fair construction, include such proof. The evidence was, therefore, properly rejected. The views above expressed lead to the conclusion that there is no ground for the reversal of the judgment. It must, therefore, be affirmed, with costs.