Brownfield v. Johnson

Opinion, Mb. Justice Clark : A complete understanding of the rules of law governing this case involves a brief statement of the material facts. On the second day of December, 1886, Brownfield & Co., the defendants, gave an order to Lawrence Johnson & Co. to purchase for them in Brazil 300 bags best quality of new brazil-nuts of the first receipts; payment to be made in cash on arrival, or by sixty day note, etc., at the defendants’ option; the plaintiffs to cable price at the time of shipment. On the same day the plaintiffs replied, stating that brazil-nuts were not bought by the bag, but by hectolitres, a measure which in past years averaged from 100 to 120 pounds; that the nuts came in bulk [265] in the steamer, and the defendants would have to furnish the bags on arrival in New York; and as “the out-turn of the measure is uncertain ” they proposed to order 450 hectolitres, etc. To this the defendants replied by telephone, “ Order 400 hectolitres and buy only the very best nuts obtainable.” The plaintiffs placed the order in the hands of their correspondents, La Roque, Da Costa & Co., Para, Brazil, who undertook the purchase, and on the 9th of February following advised the plaintiffs of shipment per steamer Portuense, upon board of which were nearly 6000 hectolitres of brazil-nuts for other parties. Of this shipment and of the price, notice was on the same day given to the defendants. Upon the arrival of the Portuense in New York, Lawrence Johnson & Co. handed to the defendants a delivery order for 400 hectolitres brazilnuts, in bulk, in separate hold, on board the Portuense, with copy of original invoice and the plaintiffs’ bill, amounting to $3,441.18. The invoice was for 312 hectolitres at 15,150 reis each and 88 hectolitres at 14,000 reis each; showing that the nuts had been originally purchased in two separate lots, and at different prices. The defendants, with the delivery order in their possession, proceeded to New York and went on board the Portuense, where they found no consignment of nuts in the name of Brownfield & Co., but the plaintiffs’ store-keeper informed them that the 400 hectolitres in question, were embraced in a consignment of 582 hectolitres of brazil-nuts, in separate hold, in the name of the plaintiffs. The defendants thereupon refused to receive any portion of these nuts as an execution of their order. The plaintiffs tendered to the defendants the whole 582 hectolitres, or 400 hectolitres thereof, at their option, at the invoiced prices, which tender in either alternative the defendants declined to accept. The plaintiffs afterwards tendered 400 hectolitres at the average price, which the defendants also declined; subsequently, the plaintiffs separated the 400 hectolitres from the lot and notified the defendants of their weight, but the defendants absolutely declined to accept the nuts on any of the several propositions made by the plaintiffs. The 582 hectolitres were made up of two lots, one of 312 hectolitres, invoiced at 15,150 reis; the other of 270 hectolitres, invoiced at 14,000 reis; 88 hectolitres of the latter were in [266] voiced to the defendants, and the residue, being 182 hectolitres, to Lawrence Johnson & Co. for account of La Roque, Da Costa & Co., who, it is said, according to the method of dealing in Brazil, in order to get 88 hectolitres to fill the order were obliged to buy a larger lot. That all parties acted in good faith is a fact found by the jury, and the case turns upon the question whether the defendants’ order was properly and legally executed. If the purchase had been of 400 hectolitres only, shipped in separate hold, there could be no question as to the defendants’ liability for the price. What, then, was the effect of placing the 182 hectolitres in the same hold with the 400 invoiced to the defendants ? It may be conceded, as a general rule, that, as between vendor and vendee, when it is sought to compel a party to pay for goods which he has refused to accept, there can be no recovery unless the order has been strictly and literally fulfilled. The bujmr is entitled to refuse the whole of the goods tendered, if they exceed the quantity agreed, and the vendor has no right to insist upon the buyer’s acceptance of all, or upon the buyer’s selecting out of a larger quantity delivered: Benj. on Sales, § 1030; to the same effect are the cases cited by the plaintiffs in error. With reference to quantity, however, the rule is less rigid where goods are ordered from a correspondent who is agent for buying them: Ireland v. Livingston, L. R. 2 Q. B. 99; for the relation of vendor and vendee, which finally results, is preceded by the relation of principal and agent, and the agent in such a transaction is necessarily invested with some degree of discretion in making the purchase. See also Johnson v. Kershaw, L. R. 2 Exch. 82; 36 L. J. Exch. 44; and Jefferson v. Querner, 30 L. T. (N. S.) 867. It must be conceded, however, that the purchase and tender of 582 hectolitres upon an order for 400, would involve a wider discretion than would be allowable under the special facts of this case, even as between principal and agent. In this case, however, the plaintiffs’ correspondent purchased for and invoiced to the defendants 400 hectolitres only, and that quantity was tendered; the remaining 182 hectolitres were not invoiced to the defendants, although the plaintiffs proposed that the defendants might have them if they chose to [267] take them. The 400 hectolitres of nuts unquestionably became the property of the defendants when purchased in Brazil, for they were purchased upon their order. By force of that order the plaintiffs became the defendants’ agent with authority to constitute an agent in Para for its execution, and the nuts were bought in virtue of the authority thus conferred. The only question, therefore, would seem to be upon the effect of the shipping of the whole lot of 582 hectolitres in one hold. It was shown that this was the usual method of shipping, especially when the orders were small. There was no effort to establish a custom of this kind, but simply to show that this was the usual and ordinary method pursued in the shipping trade. The defendant had a right to suppose these goods would be shipped in the usual manner, unless he directed otherwise, and that although intermingled with others in the forward hold of the vessel for transportation, they would be separated at the place of delivery. The nuts in question were of the same quality; they were bought at different prices, but the evidence is clear that they were of uniform quality. The weight of American authority supports the proposition that when property is sold to be taken out of a specific mass of uniform quality, title will pass at once upon the making of the contract, if such appears to be the intent. Oil in a tank and grain in an elevator may serve as illustrations of this rule. Where, however, the property is sold as part of a mass made up of units of unequal quality or value, such as cattle in a herd, selection is essential to the execution of the contract, and of course the rule cannot apply: Benj. on Sales, 477-531, and cases there cited. The storage of oil in tanks and of grain in elevators, although not universal, is the usual and ordinary means employed by large dealers in those commodities, and, whilst no custom of that kind, technically speaking, could be established, the usage of the trade and general course of business in this country is well known. In view of the necessities which grow out of such usage, the American courts have departed from the rule adhered to in England, and have recognized a rule for the delivery of this class of property more in conformity with the commercial usages of the country. A distinction is made between those cases where the act of separa [268] tion is burdensome and expensive or involves selection, and those where the article is uniform in bulk and the act of separation throws no additional burden on the buyer. In the latter class of cases a tender of too much, from which the buyer is to take the proper quantity, is a good delivery: Benj. on Sales, 1030, note. See also Timberly v. Patchin, 19 N. Y. 130; Hutchison v. Commonwealth, 82 Pa. 472; Wilkinson v. Stewart, 85 Pa. 255; Bretz v. Diehl, 117 Pa. 589. The case at bar bears no analogy whatever to Stevenson v. Burgin, 49 Pa. 44; for all that is decided by that case is, “that in a contract for a fixed quantity of merchandise to be delivered on board a vessel, the purchaser is not bound to accept and pay for a larger quantity.” The principle has no application to the evidence in this case. The case at bar bears a closer analogy to Lockhart v. Bonsall, 77 Pa. 53. In that case a tender of 5000 barrels of oil was made by Lockhart to Bonsall out of a bulk of 5981 barrels contained in 118 bulk cars. As it was the duty of Bonsall to pump the oil from the cars into the tanks of the Anchor Works, which had been designated as the place of delivery, it was held that Lockhart was not bound to set apart the precise quantity named in the contract before offering to deliver. So here, the measuring of the nuts and their removal from the vessel was the work of the defendants, and as the article was uniform in bulk, selection was of no consequence; nor, was the act in any sense burdensome or expensive, for, assuming that the whole bulk was to be measured, yet the expense attached to the whole and each part owner was liable to share it. We are of opinion that when the nuts were delivered on board the Portuense at Para, the title to of the bulk belonged to the defendants, and that upon the arrival of the vessel at New York the tender of the 582 hectolitres from which the defendants were invited to take their share was a good delivery. The judgment is affirmed.