Diehl v. McCormick

Opinion, Mr. Justice Mitchell: The two contracts upon which the decision must turn are so nearly alike in their essential parts that they may be treated as identical. That with Levi Burket sets out the date and the parties, and then the agreement of Burket, the vendor, to make from certain specified wood, “ and deliver on the cars at Canan station, or in sheds at that point,” fifty thousand bushels of charcoal, etc., “ the said coal to be delivered on cars or in sheds, dry and in good condition,” etc. The next paragraph begins: In consideration, etc., Diehl & Co. agree to pay eight and one fourth cents per bushel “ delivered on the cars subject [592] to inspection and P. R. R. track scale weight;” payment to be made monthly for all coal “ shipped the preceding month, for which the parties of the second part, (Diehl & Co.,) have inspection returns. And further, to pay five cents per bushel on all the coal put in the sheds the preceding month.” Then follow provisions as to loading the coal after April 1, 1888, and for wood leave, and then that Diehl & Co. are to provide a suitable coal-house near the railroad station, for storing the coal, to keep the stocked coal fully insured until shipped, and to ship at least one half the product by December 26, 1887. This completes the second paragraph, and then finally, in' a third paragraph, Burket agrees to load and ship the charcoal which is stored, at any time Diehl & Co. may require it before April, 1888, after which the loading is provided for in preceding paragraph. This analysis shows that the first paragraph constitutes the entire contract on_the part of Burket to make and deliver the charcoal, and the second paragraph provides directly only for the terms of payment; and all reference to the shipment on the cars is incidental only, as bearing upon the price to be paid, with or without a rebate, according to the time of the shipment. By the express terms of paragraph one, the coal was “ to be delivered on cars, or in sheds,” in the alternative; and if this were the whole contract, there could be no question that either mode of delivery would be complete and final and pass the title to the vendee. But examination shows that it is the whole contract so far as relates to delivery except as to the terms of payment. The full price is to be paid each month for delivery on cars, and partial payment each month for delivery in the sheds. But the title to the charcoal is not affected by the terms of payment. It might be sold entirely on credit, and yet delivery would pass the title as effectually as if paid for in full. Nor is it affected by the length of time the charcoal may remain stored in the sheds. Diehl & Co. bind themselves to ship at least one half before December 26, 1887, and under this stipulation the full price of eight and a quarter cents on half the entire product would become due the month after that date, whether shipped or not, but beyond this Diehl & Co. were under no obligation in regard to shipment. Burket agreed to load on the cars, on request, up to April 1, 1888, in [593] consideration of the full price, but after that date he might load on request as before, or at his option require Diehl & Co. to do so, and in the latter case, allow them a rebate of one fourth of a cent per bushel from the stipulated price. But the loading on the cars by Burket at any time, before April 1,1888 or after, was not a right, but an obligation, additional to the delivery in the sheds. He was to load it, but only when he was required to do so, and he had no other authority to dispose of or meddle with it in any way. For all other purposes it had passed out of his hands. But there was no obligation on Diehl & Co. to require him to load it. They might do it themselves at any time, if they chose, without calling on Burket at all. The charcoal, when delivered in the sheds, came under the control of Diehl & Co. It required no further identification or setting apart. What was done with it after-wards by way of loading on cars or otherwise was not part of the delivery to Diehl & Co., but of delivery by them to their customers. They could have it shipped to any person, at any place, in any quantity, and at any time, in their exclusive discretion; or they could sell it to any customer with the right to remove it in his own way, and at his own time, or they could let it remain where it was, stored as their property in their sheds indefinitely. A delivery which carried such dominion and exclusive control over the subject of it, was a complete delivery which passed the title to the vendee. That the shipment on the cars was to be “ subject to inspection and P. R. R. track scale weight,” does not affect the result at all, for this was a condition of the payment, not of the delivery. It was a means of accurate ascertainment of the quantity, to be paid for at the fixed price, and what was to be done was not by the vendor, but by and on behalf of the purchasers and for their benefit. If they had chosen to accept the vendor’s accounts without the stipulated inspection they were entirely free to do so, and such apparently was the course intended by both parties as to the amount of coal stored in the sheds each month, for no provision is made for the ascertainment of the quantity so stored, on which a partial payment of five cents per bushel was to be made. That the precise ascertainment of the quantity, by inspection and track scale weight, subsequent to the storage in the sheds, would not prevent the [594] passing of the title, is settled by Scott v. Wells, 6 W. & S. 357. And in the case which, on its facts, comes closest to the present, Gonser v. Smith, 115 Pa. 452, the lumber was selected in piles, marked, and the price agreed- upon, but the exact quantity remained open' for future ascertainment. This court held that the deferring of a settlement “ until the quantity was exactly ascertained upon shipment, was of no consequence in the way of passing title.” That case would, in fact, be upon all fours with this, were it not that there no question arose as to the right of stoppage in transitu. We must therefore consider the present case in that aspect. In Winslow v. Leonard, 24 Pa. 14, Lowrie, J., speaking of this class of cases, said the question is not, has the title vested in the vendee, “ but has it so absolutely vested as to take away the lien of the vendor for unpaid purchase money, or his right to stop in transitu; ” for, it is conceded that the right to stop may exist under certain circumstances, though the title has passed for all other purposes. From the many statements of the law on this point, Mr. Benjamin selects that by Baron Parke in James v. Griffin, 2 M. & W. 633: “ The actual delivery to the vendee or his agent, which puts an end to the transitas or state of passage, may be at the vendee’s own warehouse, or at a place which he uses as his own though belonging to another, for the deposit of goods, or at a place where he means the goods to remain until afresh destination is communicated to them by orders from himself: ” Benj. on Sales, § 1246, 6th Am. from 3d Eng. ed., 1889.. This last contingency, which is exactly the presentcase, was expressly held to determine the right in Dixon v. Baldwen, 5 East 175, in which Lord Ellenborough said: “ If the transit be once at an end, the delivery is complete, and the traxisitus for this purpose cannot commence de novo merely because the goods are again sexxt upon their travels towards a new axxd ulterior destination.....The goods had so far gotten to the end of their journey, that they waited for new orders from the purchaser to put them agaixx in motion, to communicate to them another substantive destination, axid without such orders thej'would continue stationary.” This has been accepted ever since as axx accurate and authoritative statexnent of the law. See the cases summarized in Benj. on Sales, §§ 1254-1258. In [595] our own cases, the language of Lord Ellenborough was borrowed and approved in Bolin v. Huffnagle, 1 R. 9; Hays v. Mouille, 14 Pa. 48; and expressly adopted in Cabeen v. Campbell, 30 Pa. 254, where it is said by Strong, J.: “ When an intermediate delivery occurs, before they reach their ultimate destination, if the party to whom they are delivered has authority to receive thorn and give them a new destination not originally intended, the transitas is at an end.....The rule may be stated as follows: If in the hands of the middleman they require new orders to put them again in motion, and give them another substantive destination; if, without such new orders, they must continue stationary, then the delivery is complete, and the lien of the vendor has expired. This is the doctrine of Dixon v. Baldwen, 5 East 175, which is a leading case, and such is the recognized law of this state.” In the present case, there was no middleman, but the charcoal was delivered and stored in the sheds of the vendee. This circumstance, as it did not involve actual custody on the part of the vendee, might not alone be decisive; but, in connection with the cardinal fact that the charcoal then became subject to the exclusive control of the vendee, and was to remain stationary till again put in motion to a new destination by his order, it brings the case within tire settled rule. It is clear, therefore, that the right of stoppage in transitu had ended, and a fortiori the delivery was complete for all other purposes. Judgment reversed and the distribution reported by the auditor reinstated.