Wesoloski v. Wysoski

Loking, J. This is an action for the conversion of three hundred and three bushels of onions. There was evidence that the plaintiff stored some onions in a warehouse in the fall of the year 1903, and that on February 6, 1904, he made a contract with the defendant by word of mouth for the sale of them to him at eighty cents a bushel, when they were screened and weighed. It was admitted that onions are sold by weight, fifty-two pounds making a bushel; that they shrink while in store over winter, and also that small onions are' not sold as onions and were not included in the contract of sale in question. For these reasons it was necessary in the case at bar to screen and weigh the onions. Onions are screened by being run over a horizontal screen which lets the husks and small onions fall through, leaving the merchantable ones above. There was evidence that by the agreement in the case at bar the onions were to be screened, weighed and paid for on Monday, February 8, following the Saturday when the agreement of sale was made. On February 20, the plaintiff found that the onions had not been screened and weighed. Thereupon he notified the defendant not to proceed further in the matter. The defendant answered that he had sold the onions, and the next day he screened and weighed the onions and they were shipped away. The jury were told in the language of the opinion in Riddle v. Varnum, 20 Pick. 280, that where there is an agreement for the sale of a specific article and something remains to be done, as weighing or measuring it, and there is no evidence tending to show an intention that the title should pass before the weighing or measuring is performed, the weighing or measuring is a prerequisite to the passing of the title ; but that it is a fact for the jury in each case where there is evidence to that effect, whether the title was to pass before the weighing or measuring was performed. That was correct. The rule laid down in Riddle v. Varnum is the settled law of the Commonwealth. See Sherwin v. Mudge, 127 Mass. 547, where the subsequent cases are collected. In Richmond Iron Works v. Woodruff, 8 Gray, 447, relied on by the defendant, it was held that on the evidence it was the intention of the parties that the title should pass without [498] the further act being performed. The rule laid down in Riddle v. Varnum was not questioned in that case. The conversion relied on was the sale by the defendant before the onions were screened and weighed. That was a conversion' in itself without a demand and refusal. It is necessary only to refer to Robinson v. May, 163 Mass. 212, and Baker v. Lothrop, 155 Mass. 376, where the earlier cases are collected. For these reasons the presiding judge was right in refusing to give the five rulings requested by the defendant. Exceptions overruled.