Schenck v. Saunders

Bigelow, J. The only title to the property in controversy which the defendant sets up is derived under the agreement made by the plaintiffs with Howe. This title he cannot maintain. In the first place, taken in the most favorable view for the defendant, the agreement is uncertain and ambiguous in its t irms, and it may be said to be doubtful whether it is a contract of sale, or only an agreement to supply Howe with stock to be manufactured by him for the plaintiffs. If this be so, then, as the stock originally belonged to the plaintiffs, the title to it is r. ot shown to have passed out of them by the agreement. But in the next place we are of opinion that this agreement is not a contract of sale. The plaintiffs use no words which necessarily or by implication indicate an intent to part with their t<tle. And there is wanting in the agreement the distinguishing feature of a sale — a price for the goods, or a stipulation by which the price can be fixed. The true interpretation of the contract seems to be that it was an agreement by which Howe agreed to manufacture the stock for the plaintiffs, and to receive from them, as his pay therefor, the proceeds of the sales of the goods, when manufactured and returned to them for sale, deducting the value of the stock and a commission of five per cent, on the sales. The only clause in the agreement which militates with this construction is that by which Howe agrees to “ consign ” the goods to the plaintiffs for sale. But in connection with the subject matter, we think this means only that he will send them back to them for sale, when manufactured. The bills of parcels which were sent from time to time with the merchandise were susceptible of explanation Dy paroi evidence, and did not change the terms of the written agreement under which the property was sent to Howe. They were sent [42] only as memoranda of the amount and value of the merchandise transmitted. Hazard v. Loring, 10 Cush. 267. Such being the true construction of the contract, it follows that the defendant had no valid title to the property as against the plaintiffs, and is not aggrieved by any rulings of the court upon the admission of evidence. Exceptions overruled.