Foot v. . Marsh

Gray, C. The principal question presented for our consideration arises upon the defendants’ exception to that portion of the charge given by the judge to the jury, in which he stated, in substance, that if no agreement was made or authority given to the defendants to set apart for the plaintiffs the oil described in the contract, that then the contract, from its terms, became a contract to deliver 4,000 gallons'1of oil when called for, and that the defendants, in order to comply -with the call, were bound to have that quantity on hand whenever the call should be made. This case is by the defendants likened to the case of Kimberly and others v. Patchin (19 N. Y., 330), and the grounds upon which this portion of the charge is claimed to be erroneous is, that the contract, when read by the light of the circumstances surrounding it, is in principle, like the contract in that case, for the sale of 6,000 bushels of wheat, parcel of 6,249 bushels, at seventy cents per bushel, of which no separation or manual delivery was made, but as a substitute for a manual delivery, and to constitute the contract for its sale an executed, not an executory contract, the vendor gave to the purchaser his receipt for it, agreeing to deliver it to his order, free of all charges, whereupon the vendor was held to have constituted himself the bailee of the wheat, and to have thenceforth stood in that relation to the purchaser and the property; to render the contract effectual as an executed contract from the time it was made, the purchaser must have been invested with the right, after demand, to take the property. This was a right the defendants at the time *293 of making the sale had no power to confer, they not- being at the time the owners of any portion of it; nor did they, in the place of a manual delivery, give to the plaintiffs their receipt for it, and thus attempt to constitute themselves the bailees of the plaintiffs and of the oil, as did the vendor of the wheat in Kimberly v. Patchin. If the 1§0 barrels of oil, of which the 100 barrels and the 4,000 gallons were understood to be a part, were, like the wheat, all of the same quality, so that nothing but the quantity, without reference to quality, was to be taken from the larger amount, the extrinsic facts that the sale was at a profit of only two cents per gallon, and the risk of leakage during the summer months, so largely exceeded the profits of the sale, it might be urged, with more plausibility than it now can, that the agreement of the defendants to deliver the barrels and oil when called for was like the agreement contained in the receipt in Kimberly v. Patchin, to deliver the wheat to the order of the purchaser, and that the defendants should, under the circumstances, as was the vendor in that case, be regarded as the bailees of the plaintiffs. But, in order to substitute an arrangement between the parties for a manual delivery of a parcel of property mixed with an ascertained and defined larger quantity, it must be so clearly defined that the purchaser can take it, or, as the assignee of the purchaser did in Kimberly v. Patchin, maintain replevin for it. In this case the larger quantity, parcel of which was understood to be contracted to the plaintiffs, consisted of 150 barrels containing three different qualities of oil, but sixty-eight of which (forty-seven of the Buffalo and Erie oil and twenty-one barrels, marked Y. B.) corresponded with the sample by which the 100 barrels were sold. The residue, forty-six barrels of the Murray oil, was superior to the sample; and thirty-six, known as the Lemon oil, were inferior to the sample. The plaintiffs would not have the right to take the Murray or superior oil, and could not be compelled to take the Lemon or inferior oil. And if the sample was, as the witness at one time stated, a poor sample of the most inferior oil, then but thirty-six barrels of that *294 description, containing less than 1,500 gallons, could have been selected from the whole quantity, and hence, the plaintiffs were without adequate means of redress, unless by action, for failing to deliver the quantity of oil sold conforming to the sample. The fact that the oil, which was the subject of the sale, was understood by the plaintiffs to be a parcel of a larger quantity, and that the sale was made at a profit of only two cents per gallon, while the risk of loss by leakage and evaporation was very large, are circumstances that would go far to prove that the defendants did not understand the legal import of the writing drawn and subscribed by them, or that they were overreached by the plaintiffs, who suggested their terms after, as one of them had testified, they refused to purchase, unless the defendants would guarantee them against leakage, which the defendants refused to do. But as no question was raised by the pleadings, or elsewhere, as to a reformation of the contract, we must regard it as expressing the intentions of the parties and give it the interpretation which, under the circumstances, its language plainly imports. The charge was more favorable to the defendants than a fair construction of the written contract warranted. The conversations, out of which the defendants sought to establish an agreement between the parties that the defendants might set apart the 100 barrels of oil for the plaintiffs, as well as the conversations as to the guaranty against loss by leakage, were all prior to the reduction of their agreement to writing and should have been excluded from the consideration of the jury, leaving the writing as the only evidence of the agreement to be- interpreted by the aid -of extrinsic facts. hTo error was committed in the instructions to allow interest. The verdict was more favorable to the defendants than the charge warranted; of that, however, they cannot, upon this appeal, complain. The order appealed from should be reversed. All concur. Order reversed.