Morrison v. Dingley

Appleton, C. J. This is an action of trover for the alleged conversion, by the defendants, of a quantity of coal belonging to the plaintiff. It is in proof that on the eighth day of July, 1869, the firm of William Wallace & Co., shipped from Baltimore, Md., to Gardiner, Maine, consigned to their own order, two hundred and fifty tons of coal. The coal arrived at Gardiner, and was there sold to the parties to this suit. The defendants claim that they purchased half of the cargo, and the plaintiff half; that the coal was left on Gay’s wharf in bulk, in one pile; that no division was made, while it so remained on the wharf; that the mode of division agreed upon was, that each was to take one hundred and twenty-five tons net from the ■ pile, and the remainder was to be equally divided between them; that the plaintiff took over one hundred and twenty-five tons net, and the defendants one hundred and twenty tons net and some odd pounds. Upon this state of facts it is obvious that the plaintiff, who has received more than his share, cannot recover anything of the defendants, who have had less than their share. According to the plaintiff’s statement of the case, he was to have one hundred and twenty-five tons gross, and, after he had [556] had that amount, the defendants were to have the same quantity, if so much remained. But the plaintiff was to have precedence. The coal, while in bulk and remaining on the wharf, and before it was weighed and delivered, was the property of William Wallace & Co. There was weighed and delivered to the plaintiff one hundred and twenty-five tons net. With this coal, the defendants have no right to interfere. The residue of the coal, until it was weighed and delivered, belonged to the shippers. It is a fundamental principle, pervading everywhere the doctrine of sales of chattels, that if goods be sold by number, weight or measure, the sale is incomplete, and the risk continues with the seller, until the specific property be separated and identified. 2 Kent’s Com., 496. While the coal remained in bulk, and before separation and weighing, there was no specific portion, which belonged to the plaintiff. The title did not vest in him until a separation had taken place. Such seems to be the uniform result of the authorities on this subject. In Rapelye v. Mackie, 6 Cowan, 251, it was decided that when anything remains to be done, as between buyer and seller, or for the purpose of ascertaining either the quantity or price of the article sold, there is no delivery, and the property does not pass, though the price be in part paid; and that, if there be a part delivery, the other part, not yet ascertained, will not pass. The same doctrine was fully affirmed in Scudder v. Worster, 11 Cush., 573; and in Houdlette v. Tallman, 14 Maine, 400; Bailey v. Smith, 43 N. H., 141; Gibbs v. Benjamin, 45 Vt., 126. The cases, in which it has been held on a sale of a specified quantity of an article, as of grain, that its separation from a mass indistinguishable in quality or value, in which it is included, is not necessary to vest the title, have been determined upon principles not at all inconsistent with those already advanced. Thus in Kimberly v. Patchin, 19 N. Y., 330, the owner of wheat lying in a mass in his warehouse, sold a specified portion thereof for an agreed price, and executed to the vendee a receipt acknowledging himself to hold the wheat subject to the vendee’s order, and the title was held [557] to pass to such vendee. The seller, by the terms of his agreement, constituted himself the bailee of the purchaser, and henceforth stood in that relation to him and to the property. Upon the same principle was the decision in Waldron v. Chase, 37 Maine, 414, where the owner of a large quantity of corn in bulk, sold a certain number of bushels therefrom, and received his pay therefor, and the vendee took away a portion, it was held that the property in the part sold, vested in the vendee, although it was not measured or separated from the heap. But in the case at bar, the vendor gave no receipt for the coal, nor was there any payment therefor, nor any bill of sale given until August 18, 1869, which was long after the defendants had received their part of the coal. The vendors, "Wallace & Co., could not be regarded as bailees of the plaintiff, for he had not paid them for the coal, nor had they given him any receipt by virtue of which they might be so regarded. Nor, indeed, had they even given him a bill of sale of the coal, before the quantity taken by the defendants had been weighed out to, and been removed by them. The result is, that upon the facts as proved by the plaintiff, or by the defendants, the plaintiff has title only to the coal weighed out, and delivered to him, and to no more. The verdict, manifestly, was for coal, the title to which had not passed to the plaintiff. Motion sustained. Barrows, Danforth, Yirgin and Peters, JJ., concurred.