Pritchett v. Jones

The opinion of the court was delivered by Gibson, C. J. It certainly seemed to us in Clow v. Woods, that the inconvenience of removing an article contracted for in the hands of the manufacturer, would so account for retention of the possession for a period sufficient to complete the process, as to rebut the inference of fraud; and as that case is the first of the series in our courts, it should not be disturbed but on grave consideration. The ground on which the cause was decided there, however, is not the one on which the question is to be determined here; and on mature reflection, I am convinced, that it was unnecessarily and improperly conceded. The objection to the title lies deeper, perhaps, than even the legal imputation of fraud, resting, as it seems to do, in the very essence of the contract, which, to vest a specific property in the subject of it, must be a contract executed. The distinction between a sale which transfers the ownership, and an agreement to sell and deliver at a day certain, which gives but an action for the breach of it, is a broad one, distinctly understood, and practically observed in the current transactions of business; and I am at a loss to see how its effect can be evaded in a case like the present. Every agreement for a subsequent delivery is essentially executory. The theory of those who maintain that the title passes in the mean time, is, that the artisan remains in possession but as the servant of the customer, the labour and materials to be added by him, being the subject of separate compensation ; consequently, that there is, in fact, a present execution of the contract. In point of policy, this would evidently be objectionable, because no purchaser of a finished article in the usual course, would be secure of the title; and in point of reason, it is forced and unnatural, because it is founded on an hypothesis false in fact, that the value of the article in its unfinished state, is the basis of the contract. Was it so considered in the present case, or in any other to be found in the books? The parties dealt expressly in reference to the price which the leather would fetch when fit for the market; and having treated in reference to a future condition of the article, a future price and a future delivery, the contract was necessarily exec [267] utory, as every sale of an unfinished article must be when not sold and delivered as such. Unquestionably, the property in an article made to order, passes but by the delivery of it, because at the time of the order, which is the date of the contract, there was no property in any thing to pass; and it will scarcely be pretended, that the accidental existence of a part of the work at the time, would give the customer a specific right to the whole. For instance, an order to finish a coach whose parts were sufficiently formed to individuate it as a whole, would be obnoxious to the objection just staled, as regards specific property in the labour and materials to be added; and it would not vest a specific property in the work on hand, because it was not that, but a finished coach, which was the subject of the contract. Here, however, it is said, that the hides required but to be left a few months longer in the vats in order to absorb the tannin from the bark; and in this respect, they have been likened to grain growing, which is a subject of present sale. The evidence proved, however, that labour was still to be expended on them; and beside, a growing crop draws its increase from a process of nature, while hides in a tannery draw theirs from a process of art, which- bias the peculiar effect of changing the specific character of its subject. The grain, too, is contracted for at its present value, affected, as it must necessarily be, by the prospect of its natural increase, just as a growing animal is affected by the same prospect; and the contract is executed by delivery, as far as it is susceptible of it. But what seems conclusive in all cases of retained possession for purposes of completion, is, that the customer would not be bound to accept the article if it were injured by unskilfulness, or finished in an unworkmanlike manner; and the contract being thus shown to be executory, it would follow that the customer has no property in the thing which he could enforce even against the seller. What then, is the case on the record ? The contract was made the thirty-first of July, and the property was to be delivered, not when the process should be finished, but on the twelfth of November ensuing; so that the • postponement of delivery not being graduated to the actual exigency, could not be justified even by the exception in Clow v. Woods. Independently of that, it appears, that the hides were susceptible of immediate delivery, as the buyer was willing to remove them at his risk, or send workmen to finish them where they were; and the rejection of his proposal to do so, evinced but the determination of the owner to enter into no contract that would presently divest him of the property. Even the price was not definitively fixed ; for the skins were to be delivered at the market value, and the seller was to have the benefit of the intermediate rise, if any should occur, even as regards the hides. In the contemplation of both parties, therefore, all was executory. But even had they contracted for the article at the value of it in its unfinished state, the consequence would have been the same; for no form of dealing will turn what is essentially executory into a contract executed, and an apparent eva [268] sion of the rule which requires a change of the possession, as that would palpably have been, would itself be an index of fraud. Apart from all this, however, it clearly appeared from the testimony, if believed, that both the hides and the skins were susceptible of removal without inconvenience or loss; and if a present sale were intended, it it should have been attended with present delivery. On the general principle of Clow v. Woods, then, the judge was right in charging that the contract did not vest the title in the plaintiff. Judgment affirmed.