Waldron v. Chase

Hathaway, J. — The defendant had, in his store, some fifteen thousand bushels of corn, in bulk, of which he sold to the plaintiffs five hundred bushels, Dec. 1, 1851, and received his pay. The plaintiffs were millers, and for their own convenience and without charge for storage,, left the-corn in the defendant’s store and took, as they wanted to use it, between the first and seventh of December, two hundred and seventy-six bushels. On the seventh of December the defendant’s store and most of the corn in it was destroyed by fire, and the plaintiffs bring this action to recover payment for the balance of the five hundred bushels. The action is by the vendees against the vendor, and one question presented is, whether or not, as between them,, the property in the whole five hundred bushels- passed to the vendees by the sale. The plaintiffs contend that, although they had paid for the whole, yet they had received only two hundred and seventy-six bushels, and that, until they had actually received the whole, or it had been measured out to them and’ separated from the mass, what remained in the store was not legally delivered, and was at the risk of the vendor. There is an apparent conflict of the authorities upon this subject, arising, perhaps, more from a difference of the facts in the cases, in which the question has been presented, or from a difference in the forms of actions, by which parties have sought to vindicate their rights, than from any i’eal difference of opinion concerning the law. In this case the contract of sale was complete. The corn was paid for, and a part of it taken by the plaintiffs, who had the right to take the residue, when convenient for them, in the ordinary course of their business. Nothing more was necessary to be done on the part of the vendor, and, both upon principle, and according to the law as adduced from [419] the authorities cited by counsel in the case, the property passed to the vendees, and was at their risk. 2 Black. Com. 447, 448; Damon v. Osborn, 1 Pick. 476; Riddle v. Varnum, 20 Pick. 280. But the plaintiffs claim that, as a portion of the corn was saved from the fire, they are entitled to recover fayment for that. This is an action of assumpsit, and the case finds no evidence of an express promise to pay the plaintiffs for the corn saved, nor does it furnish any proofs from which a promise can be implied, and a nonsuit must be entered. Shepley, O. X, and Howard, Rice .and Cutting, X X, concurred.