Nicholson v. Taylor

The opinion of the court was delivered by Thompson, J. “ When the lawful form of contracting is pursued,” said Mr. Justice Lowrie in Winslow, Lanier & Co. v. Leonard, 12 Harris 14, “ the vesting of the title always depends upon the intention of the parties, to he drawn from the contract and its circumstances,” and “it is perfectly legitimate to point to the want of measuring and setting apart as evidence, in the very nature of the transaction, that it was not intended as a perfect saleId. Going further in this direction than mere evidence, C. J. Gibson, in Hazard v. Hamlin, declared that “ where nothing is paid or delivered, it is agreed on all hands that the contract is merely executory.” This is true of such a contract standing alone; whether taken as an axiom or as evidence merely, the difference is in terms only. No'intention is to be drawn from a contract but what it expresses, when there is nothing else to manifest it; so that the difference of terms in stating the proposition leaves the rule the same, namely, that so long as anything remains to he done as between the vendor and vendee, for the purpose of ascertaining the amount and price of the article, the property and risk remains in the vendor; it is not changed : Addison, on Contracts 222, 223; Hanson v. Meyer, 6 East, 614; Ward v. Shaw, 7 Wend. 404; Lester, Sennett & Co. v. McDowell, 6 Harris 92; Hutchinson v. Hunter, 7 Barr 140; Smyth v. Craig, 3 W. & S. 20; Winslow, Lanier & Co. v. Leonard, 12 Harris 14 ; Nesbit v. Burry, 1 Casey 208. This rule is predicable of cases where no actual delivery of the property has taken place, and it is sought to give the contract the effect of changing the possession. If parties choose to deliver property without the price being fixed, the property will pass, because it is the contract and intention to pass it. But we have to do with a case not of this last kind. The contract is as follows:— “ Sold Messrs. R. L. & C. L. Nicholson, load of Pine creek lumber, within the neighbourhood of 5000 feet of plank, at $15.50 and expenses, take a note at 6 months, with interest. “ T. B. Taylor & Co. “ 8th Mo. l'lth.” A Pine creek load of lumber, it would appear, contains about 50,000 feet board measure, a portion of which in this case was plank. The oral testimony left the case just as it found it, giving nothing in regard to the intention of the parties but what was [131] contained in it. The defendants below refused to deliver the lumber, alleging that they were mistaken in the amount of the plank contained in it — that in place of 5000 there were 10,000 feet, and which they charged that plaintiffs knew; but they offered to deliver the load, or the amount of it, with 5000 feet of plank in it. The plaintiffs refused to take it. This being the situation of things between the parties, and the plaintiffs claiming that the property passed to them, brought a special action on the case against the defendants in which they had a count in trover. On the trial in the district court, the point was reserved as to whether the property passed by the contract; and a verdict was rendered in favor of plaintiffs for.$1050.50, its entire value. Afterwards the court entered judgment for the defendants non obstante veredicto, on the point reserved. The case stands now simply upon the rights of the parties as created by the written contract. Applying the rule already laid down, “that when something remains to be done between the vendor and vendee for the purpose of ascertaining the amount and price of the article, the property and risk remains in the vendor,” to this case; we will have but little difficulty in coming to a conclusion. The lumber was to be measured before the price could be -ascertained, so as to give the six months’ note for the payment. This was, in point of labor, as well as in other particulars, an important item of the transaction. No time was set for the measurement, or for giving the note, the latter being consequent only on the former; all showing that the contract was hut executory in fact and intention. The property therefore remained in the vendor, and the plaintiffs had no legal right to recover its value in trover; property in the plaintiffs being necessary to enable them to do so. They were at no time debarred from suing for damages for a breach of the contract, if any such had occurred. We think the court below were right in their decision, and this judgment must be affirmed. Judgment affirmed.