Gonser v. Smith

Mr. Justice Gordon delivered the opinion of the court, March 14th, 1887. In Lee v. Keys, 88 Pa., 175, we held, following Jamison v. Collins, 2 Nor., 359, that a writ of error to a reference under the Act of 22d April, 1874, brought up only questions of law arising on bills of exceptions to the rulings of the judge, and that his conclusions on the facts of the case must be regarded [460] in the same manner as the verdict of a jury. This case has since been followed by Brown v. Dempsey, 14 Nor., 243, so that we may regard it as established that this court will not reinvestigate the facts as found by the judicial referee. Such being the case, our task in the matter in hand is an easy one. According to the finding of the learned judge we understand that the plaintiffs were the owners of the lumber sold; that this lumber was actually manufactured and placed in separate piles; that it was selected by the defendant, and distinctly marked and designated. As the exact quantity was unknown, an estimate was made by the parties for the purposes of sale ; that bills of sale were prepared by the vendee, and were signed by the vendors, in which appropriate words were used to specify aud designate the subject matter of the sale, and to perfect the sale and title to the vendee. The defendant paid the earnest money ; gave his notes for the estimated amounts, and paid them as they became due; that portions of the lumber were shipped, from time to time, on his orders, and that he exercised, and continued to exercise, unquestionable rights of ownership over the lumber up to the time it was destroyed by fire. What we have here stated is the substance of the findings, and an examination of the evidence satisfies us that they were warranted by the testimony. Now, if there be any doubt as to the law governing this case it may be dissipated by reference to Winslow, Lannier & Co. v. Leonard, 24 Pa., 14, where it was held, that though the right of a vendor to rescind a sale, because of the failure of the vendee, or his refusal to pay, continues so long as any weighing, measuring or other thing remains to be done on his part, yet this test does not apply to the question of the vesting of the title in a case where the vendor has no cause of rescission. It is further said in this same case, that where the lawful form of contracting is pursued, the vesting of the title always depends on the intention of the parties to be derived from the contract, and its circumstances, and that actual delivery, weighing and setting aside are only circumstances from which the intention may be inferred. When these undoubted rules of law are applied to the defendant’s contention it is found to have no substantial foun/fiation. Not only selection and marking of the lumber, but the bills of sale, and the delivery of the defendant’s notes expressed the fixed intention of the parties to make the sale a present, and positive one. Nothing of any materiality remained to be done ; the deliv-r ery was complete when the piles were estimated, and marked to Gonser, and that they deferred a full settlement until the quantity was exactly ascertained upon shipment, was of no [461] consequence in the way of passing title. That the plaintiffs may have had the right to have refused to allow the boards to be. taken from their yard, had the defendant neglected to comply with his contract, is possible, but as there was no such neglect, and therefore, no necessity for the exercise of such right, we need not discuss what might have been under different circumstances. From what we have before us, we are free to say that the rulings and judgment of the court below were in all particulars correct. The judgment is affirmed. Mercur, C. J., dissents as something remained to be done 'according to the terms of the contract.