Keeler v. Vandervere

By the Court Miller, P. J. It is a general rule of law, that, where anything remains to be done, by the vendor of personal property, to ascertain the quantity or quality of an article sold, or to put it in the condition which the terms of the contract require, the title does not pass, and the contract is executory. (Terry v. Wheeler, 25 N. Y., 520, 525; Burt v. Dutcher, 34 id., 493; Kelley v. Upton, 5 Duer, 336; Fleeman v. McKean, 25 Barb., 474; Whitcomb v. Hungerford, 42 id., 177; Pierson v. Hoag, 47 id., 243; Joyce v. Adams, 4 Seld., 291.) And, where such is the case, and the article is not defined at the time, or is to be afterward procured or manufactured, the contract carries with it an implied obligation that the article shall be merchantable, at least of medium quality or goodness. But if the article is in existence at the sale, and if the purchaser has an opportunity to examine the property, and it is set apart and selected, this rule does not apply. (Hargous v. Stone, 1 Seld., 73-86.) The cases cited and relied upon do not go beyond this, or establish any different rule; and, in all of them, either the property was not examined and inspected before a delivery, or there was a special contract as to its condition. The ease at bar differs from those which are relied upon, as the defendant saw and examined the hops before the purchase was made. (Sprague v. Blake, 20 Wend., 64; Howard v. Hoey, 23 id., 350; Reed v. Randall, 29 N. Y., 358; Hamilton v. Ganyard, 34 Barb., 204; on appeal, 3 Keyes, 45.) If the views expressed are sound and correct, there was no error in the refusal of the court to nonsuit, upon the ground that the evidence showed that a considerable portion of the hops were not in a fair or merchantable condition when delivered. [316] It is argued by the defendant’s counsel, that the court erred in refusing to nonsuit the plaintiff, upon the ground that the evidence showed that a large portion of the hops were rendered worthless and useless by the manner in which they were baled by the plaintiff, and that his own act had destroyed them and rendered them useless and of no value. I think that the judge upon the trial was clearly wrong in refusing the motion made for a nonsuit upon the ground last stated. The testimony is undisputed that the hops, with the exception of a small quantity which, after the sale, were found to be spoiled, were in a sound condition when the bargain was made; and at this time neither party was aware that any of them were injured or in a damaged condition. It was first discovered that such was the case when they were pressed and baled. The plaintiff had never pressed hops before, and did not know, as he testifies, what effect it would, have upon the bale to put a small portion of heated hops with the others. According to the plaintiff’s version of the matter, one Birch, who was assisting the plaintiff in baling the hops, first discovered a bunch of heated hops among the good ones, and informed the plaintiff of it. The plaintiff and others presen»4 looked at them. The plaintiff said, “ What do you think?’ and to Birch particularly he said, “ If they will injure the hops I will not put them in; and if they are not going to injure them, so anybody would ever know the difference, I will put them in.” Birch replied that he did not think there were enough to do any damage, or so that anybody would know any difference; and they put them. in. Upon his cross-examinatian the plaintiff testifies that he took and scattered the heated hops through the several bales, and mixed them with the others, because he thought that there were not enough injured hops to do any damage. Birch swears that he had not much experience in baling hops; that plaintiff called him up stairs, instead of his calling plaintiff, and he told plaintiff that he thought they were heated; that the plaintiff asked if they could not be so mixed that they would not show, and Birch [317] replied that he did not know but they might, and the plaintiff said he would try it, and did so. The testimony of the plaintiff shows that tainted hops were in two vi the bales when delivered. Another witness, Birch, testifies to four or five bales, and it appears, finally, after the hops had remained in store some time, all of them were damaged and of but little if any value. The evidence is undisputed, that mixing heated hops with good hops, while pressing and baling, is an improper and unskillful way of preparing them for market, destroys their flavor and renders them musty and unfit for use. There is no testimony in the case which shows that the damages could have been occasioned by any other cause. And even if the injured -hops may not have entered into or tainted more than the few bales which were examined at the time of delivery, this was enough to infect and render nugatory the whole contract. The contract was entire for all the hops, and the defendant was not bound to receive any less than the whole crop. He had a right to insist upon a delivery of all he had purchased according to the terms of the agreement. (McKnight v. Dunlop, 4 Barb., 44; Matthews v. Hobby, 48 Barb., 167; Reimers v. Ridner, 2 Rob., 11.) The plaintiff was bound to exercise ordinary care and skill in pressing and baling the hops, and is liable for a failure to do so. He was clearly guilty of negligence in thus mixing the heated hops with the others. If he had no previous experience he should have consulted with those who had ; and, in a matter which might affect the soundness and value of the entire crop of hops sold, if he had not sufficient knowledge and skill, is inexcusable for not employing or advising with those who were competent to judge. Hone such seem to have been engaged with him in pressing and baling the hops, and there is perhaps some reason to believe that the plaintiff may have been too anxious to realize all he could out of the hops, without paying that attention to their preparation for delivery, and without that regard to their quality and condition, which his obligation as vendor demanded. It [318] would be unjust and in violation of a settled principle of law, to allow the plaintiff to recover under the circumstances presented, and for the reasons stated the judge should have granted the motion made for a nonsuit. There is no other question in the case which requires discussion, and the motion for a new trial must he granted, with costs to abide the event. Parker, J. I prefer to state the ground on which I thin! a new trial should he granted, as follows: The contract to purchase the hops was executory, because something remained to be done to prepare them for delivery „ and then to ascertain the quantity, and because they were to be paid for on delivery. The title, therefore, remained in plaintiff. (Pierson v. Hoag, 47 Barb., 243.) It is undisputed that when they were offered for delivery a portion of them had deteriorated by the fault of the plaintiff) and were, through such fault, not in a merchantable condition. In this condition they were not what defendant purchased, and he was not bound to receive them, and as the contract was entire he was not bound to take part without the whole. As in regard to this fact there was no dispute, the plaintiff should have been nonsuited. A new trial should therefore be granted, with costs to abide the event. James, J., concurred with Parker, J. Hew trial granted.