Sherwin v. Mudge

Gray, C. J. By a contract for the sale of specific goods, the title doubtless passes as between the parties, without any actual or constructive delivery, or payment of the price, unless it can be shown that their intention is different. Tarling v. Baxter, 6 B. & C. 360; S. C. 9 D. & R. 272. Dixon v. Yates, 5 B. & Ad. 313, 340; S. C. 2 Nev. & Man. 177, 202. Gilmour v. Supple, 11 Moore P. C. 551. Parsons v. Dickinson, 11 Pick. 352, 354. Pratt v. Parkman, 24 Pick. 42, 46. Morse v. Sherman, 106 Mass. 430. Dempsey v. Gardner, ante, 381. But in the present case the terms of the written contract manifest the intention of the parties that the title shall not pass immediately. The implication of an immediate transfer of title, suggested by the use, at the outset, of the words in the present tense, by which the defendant “sells,” and Jordan, Marsh & Co. “ buy,” an entire stock of goods in a particular shop, is controlled by the subsequent provisions. The contract not only requires a comparison of the actual quantities of the goods with the inven [550] tory in the possession of the defendant, in order to fix the price; but the stipulation, “ delivery to be made and price paid as soon as the quantities can be verified,” shows that the parties contemplated and intended that the transfer of the title and the payment of the price should be simultaneous, and that both should be postponed until the quantities of the goods were veri fled and the amount of the purchase money thereby ascertained. Higgins v. Chessman, 9 Pick. 7, 10. Dresser Manuf. Co. v. Waterston, 3 Met. 9, 17. Macomber v. Parker, 13 Pick. 175. Mason v. Thompson, 18 Pick. 305. Riddle v. Varnum, 20 Pick. 280. Foster v. Ropes, 111 Mass. 10, 16. The defendant, therefore, was the owner of the goods on the first of May, and is liable for the tax assessed thereon. Judgment for the plaintiff