Carpenter v. Glass

Hughes, J., (after stating the facts.) “To maintain replevin for goods, the plaintiff must not only have title, general or special, in them, but must be entitled to immediate possession thereof.” Thatcher v. Franklin, 37 Ark. 66. It appears from the evidence that the appellee contracted with the agent of Winkler & Lupkes to buy of them the flour in controversy on 30 days’ time, and that they sent appellee the bill of the articles, and consigned the goods to Carpenter, | with other barrels and sacks of flour of the same brand and | quality, and that, before the goods were delivered to the appel-1 lee, Winkler & Lupkes instructed Carpenter not to deliver the I flour to Glass, unless he paid cash for it; and that the flour was I not appropriated, marked or set aside or designated to fill Glass’ I order. No part of the flour was ever marked, set aside or in any way designated for Glass. A majority of 'the court are of the opinion that Carpenter was the agent of - Winkler & Lupkes to receive the flour and deliver the same according to their directions only, and that there was, under the circumstances of this case, no such deliv- 9 ery of the flour to Glass as to warrant him in bringing replevin; B that he was not entitled to immediate possession of the same. 9 Though Glass may have had his remedy against the vendors I for failure to comply with their contract, he could not main - B tain replevin until he had the right to the immediate possession. Neither the title nor right to possession of any specific property had passed to him. There are eases which hold, under circumstances similar to those in this case, the title and right to the immediate possession of the property passes; but wo think the weight of the decisions and the better and later decisions are to the contrary. Among the cases, according to the doctrine of which it might be said that the title and right to immediate possession of the flour in controversy in this case passed to the appellee, Glass, are: Pleasants v. Pendleton, 6 Rand. 473 (1828); Kimberly v. Patchin, 19 N. Y. 334 (1859); Mackellar v. Pillsbury, 48 Minn. 396; Russell v. Carrington, 42 N. Y. 118 (1870). In these cases two judges dissented, but Kimberly v. PatcMn was approved, and many other cases. In conflict with the above cases are an equal, if not greater, number of cases, among which are Merrill v. Hunnewell, 13 Pick. 213 (1832); Woods v. McGee, 7 Ohio, 413 (1836); Dunlap v. Berry, 4 Scam. 327 (1843); Field v. Moore, Hill & Denio, 418 (1843); Courtright v. Leonard, 11 Iowa, 32 (1860); Bailey v. Smith, 43 N. H. 141 (1861.) “In McLaughlin v. Piaiti, 27 Cal. 463 (1865), it was declared to be a fundamental principle' of the law of sales that if goods be sold (which are mingled with others) by number, weight or measure, the sale is incomplete, and the title continues with the seller until the bargained property is separated and identified.” Caruthers v. McGarvey, 41 Cal. 15 (1871); Keeler v. Goodwin, 111 Mass. 490 (1873). In Commercial Bank v. Gillette, 90 Ind. 268 (1883), the supreme court of Indiana somewhat warmly vindicated the general rule so often stated, citing many authorities, and disapproving of Pleasants v. Pendleton and Kimberly v. PatcMn, which are leading cases on the other side. See also Fry v. Mobile Savings Bank, 75 Ala. 473 (1883); Mobile Savings Bank v. Fry, 69 Ala. 348; Ober v. Carson, 62 Mo. 213 (1876); Friend & Fox Paper Co. v. St. Charles Starch Co., 6 Mo. App. 598; Faulkner v. Harding, 9 ib. 598; Fitzpatrick v. Fain, 3 Cold. 15; Steaubli v. Bank, 11 Wash. 426, and other cases cited in Benjamin on Sales, 321 to 327 inclusive. After reviewing the cases, Mr. Bennett, in his note to Benjamin on Sales, says: “We have cited more cases on this point than was perhaps necessary, partly on account of Mr. Ralston’s very clever and interesting monograph, inclining to the opposite view, and favoring what he calls the ‘newrule,’ though our examination leads us to believe that the newer cases ‘prefer the old way.’ Benjamin on Sales, 326-7. He further says (page 327): “Whether the title of unseparated goods from amass has in fact passed, may be tested by a simple illustration: A buys of B 100 barrels out of 1,000, and nothing is done to distinguish or separate them. C steals one barrel from the mass. Can he be safely indicted for stealing the goods of A? It does not follow, however, in such a case that the parties are under no obligations, and have no rights as to each other before separation. If the goods are still in the possession of the vendor, he may separate at his election0, and recover the price. If he declines to do so, the vendee, upon paying or tendering the price, may have an action for damages for such refusal to separate and deliver, in which he could recover the whole loss sustained. The only substantial loss to which the vendee is exposed is that if an irresponsible vendor should resell to another party, who gets possession, the vendee could not recover the goods of the second vendee, nor entire satisfaction against the vendor; but this is incident to all executory sales of personal property.” At page 327 Mr. Benjamin says: “From the foregoing review of the cases, we seem to be justified in these conclusions: First. In a sale of a portion of a larger mass, the whole remaining in the possession of the! vendor, with a right and power in him to make a separation,! both upon principle and the weight of authority, no title passes! until that is done, so as to enable the vendor to recover the! price, even for goods bargained and sold. Approved in New England, etc. Co.v. Standard Worsted Co., 165 Mass. 328, 329. “Second. Nor to enable the vendee to maintain trespass,! trover, or replevin against the vendor, or any one wrongfully! taking away the goods from the vendor’s possession. g “Third. If the vendee has paid the price, and the vendor! refuses to separate or set apart the portion sold, the vendee! may recover back the amount paid; if not paid, damages for non-fulfillment. “Fourth. In case the whole mass is delivered to the vendee, with a right and power in him to make the separation, the title sufficiently passes to render him liable for the price, or enable him to sue any one for the wrongful conversion of the goods, even before he has separated them. “Fifth. A constructive delivery may be sufficient for this purpose, as where a bailee of the goods agrees to hold them, on the order of the vendor, for the benefit of the vendee.” The main principle in these eases cited by Benjamin on Sales (i. e., that before title and right to possession of a part of a mass agreed to be sold pass to the vendee, so as to enable the vendee to maintain trespass, trover or replevin therefor, there must be a separation of the part sold from the mass, by setting it aside for the vendee, or marking it, or in some way designating it or distinguishing it from the mass, for the vendee) is the doctrine of our own court. See Berger v. State, 50 Ark. 20; Herron v. State, 51 Ark. 136. The judgment is reversed, and a judgment entered here for appellant.