Rider v. Roberts

Auras, J. The plaintiff states in his declaration that “he offered to deliver and tendered to the defendants ” the hops contracted for, but that “ the defendants did not nor would receive [272] Said hops, nor pay for them, but on the contrary neglected ahd refused and still neglect and refuse to receive or pay for the same.” The case states that the defendants refused to receive the hops at their store (the place of delivery,) and they were taken by the plaintiff to a storehouse in the neighborhood of the defendant’s store, and there left for the defendants, and the defendants were notified that the hops wore so left for them. The court decided that the rule of damages was the contract price which the defendants were to pay for the hops. This male of damages must stand upon the principle that the veudor in this ease, by offering to áeíiver and tendering to the defendants the hops contracted to he delivered, thereby passed the title to the vendees, so that the hops so tendered became the property of the vendees, and the vendor’s title to them ceased, although the vendees refused to accept and did not accept of them. It is to he observed that this is not the case of the sale of the specific article and the tender of it to the vendee ; nor is it even the sale of goods generally and the agreement to deliver and the delivery of them by a day certain ; nor is it the sale and delivery by the vendor and acceptance actual or constructive by the vendee of a portion of the property delivered. The authorities cited by the plaintiff will be found to range under some one of these heads. But it is a contract to deliver at a future day property not then in esse; property which is to he thereafter produced by the cultivation of the earth, and which is to be of a specified character and description. It comes by analogy within the class of contracts for the manufacture of goods and for their delivery at a future day. In such cases llie authorities have abundantly established the general rule that the article must not only be made and offered to the vendee, but that he must accept of it, or it must he set apart for him by his consent, before the title to it will vest in him. And although the cases to some extent modify this general rule, as where the parties agree to treat the article as constructively delivered when finished, or as where the vendee finds the materials and superintends or specially directs in the process of manufacture, yet we find nothing to make this case an exception. It is obvious that the parties did not intend and could not have [273] intended that a mere tender of the hops by the vendor should pass the title in them to the vendee against his positive refusal to accept them. The hops were to be raised thereafter, were to answer the special description specified in the contract, and were to be of Vermont inspection. The vendee was entitled to examine them and use his judgment in determining whether they came within the contract. They would not become his property against his consent; although if he wrongfully refused to accept them he would be liable in damages. He was not bound by the offer of delivery to accept them and treat them as his own. Where the contract so plainly points for something further to be done by the purchaser, some further right or privilege to be exercised by him before actual delivery takes place, and actual possession and title change, there the possession and title must be held to remain in the seller, and he must take charge of the property and keep or sell the same as he sees fit. Hale v. Huntley et al. 21 Vt. 147; Jones v. Marsh, 22 Vt. 144 ; Gilman v. Hill, 36 N. H. 311; 26 Barb. 472. Granting, therefore, that the defendants, by refusing to receive the hops have broken their contract, we think they are justly liable in damages only for the difference between the contract price and the market price at the time of delivery. Such is the rule in actions brought by the vendor against the vendee for non-delivery. It stands upon this reasonable ground, that as the title to the property remains in the seller, he can, upon non-acceptance by the vendee, sell the property at once for its market price, and therefore that the difference between such market price and the contract price will indemnify him against loss. Crooks v. Moore, 1 Sandf. 297. As the case must be sent back for trial on account of the error in the assessment of damages, and as we are not able to fully concur upon the other point, as to whether the defendants were bound to receive the hops they refused to accept, we reverse the judgment without passing on that question. Judgment reversed.