Hotchkiss v. Higgins

Loomis, J. The plaintiff was a licensed liquor merchant in New Haven and received from one J. B. Northrop, proprietor of a hotel at Stony Creek, a written order dated July 25th, 1883, signed by the latter and directed to the plaintiff, as follows:—“Please send me by first’ freight one half barrel Bourbon whiskey and two baskets of Piper wine, — 210 — quarts. What is used will account for, and ship rest back to you. I want it for the commercial travelers who will be here Friday to dinner. Expect a big time if pleasant.” The liquors were sent as directed and charged to Northrop on the plaintiff’s books, and were duly received by Northrop, but while in his possession at Stony Creek and before any of it had been used it was attached by the defendant as .deputy sheriff as the property of Northrop in a suit against him and in favor of one Sylvester N. Ryder. The question for our consideration arising upon these facts is whether the property when attached belonged to Northrop or the plaintiff. It seems to us that the principles invoked in behalf of the plaintiff to show that the title remained in him do not apply to this case. Where personal property has been sold and delivered with the privilege of purchase, but upon the express condition that the title should not pass to the vendee until payment of the price, our courts, in common with many other American authorities, have uniformly upheld the vendor’s title, even against the vendee’s creditors or subsequent purchasers in good faith and without notice. Lewis v. McCabe, 49 Conn., 141. In this class of cases the stipulation of the parties that the title should remain in the vendor is controlling. The case at bar lacks this distinguishing feature, and so we must assign it to a different class of contracts. But the plaintiff says that the contract must be regarded as a conditional sale; that Northrop had a mere option to purchase what he might consume, and'that this option was a condition precedent which he had not exercised at the time of the attachment. There is plausibility in this claim, because' we approach •the border line, which is often obscure, that separates bailments from sales. Nevertheless there is a manifest distinction between an optional right in the party receiving the goods to purchase, and an optional right to return the same goods in whole or in part. In the former case the title will — 211 — not pass till the option is determined, while in the latter it passes immediately to the party receiving the goods subject to be returned. Northrop’s option was not to purchase if he sold the liquors, but to return the purchase if he did not sell. This distinction is abundantly supported by the authorities. In Buswell v. Bicknell, 17 Maine, 844, where the owner of a cow delivered her to another on his promise to pay a certain sum of money therefor by a given day, or to return the cow and pay a lesser sum for its use, the property in the cow it was held passed immediately from the former to the latter. Weston, C. J., in delivering the opinion of the court said:—“Whether the alternative is to return specifically or in kind, or specifically or to pay a certain sum, the principle is the same. The property in the thing delivered passes, and the remedy of the former owner rests in contract. It is the option conceded to the party receiving which produces this effect. He may do what he will with the article received. If he pays, he fulfils his contract. If he neither pays nor returns, he is liable to an action.” And in Crocker v. Grullifer, 44 Maine, 493, the court says:— “ The general proposition that a delivery of an article at a fixed price, to be paid for or returned, constitutes a sale, is not questioned. When the option is with the party receiving, to pay for or return the goods received, the uniform current of authorities is that such alternative agreement is a sale.” The same distinction is recognized and applied in Holbrook v. Armstrong, 1 Fairfield, 31; Perkins v. Douglass, 20 Maine, 317; Dearborn v. Turner, 16 Maine, 17; and Hunt v. Wyman, 100 Mass., 200. In the light of these distinctions we think the case at bar belongs to the class of agreements usually termed contracts of “ sale or return,” which are thus defined in Addison on Contracts, book 2, chap. 7, bottom page 632, 8th edition:— “ When goods are sold under a contract of sale or return the sale is a conditional or defeasible sale. The right of property in the goods passes to the purchaser, subject to be divested out of him and revested in the vendor by a return — 212 — of the goods according to the terms of the contract.” This proposition is strongly supported by the uniform current of authorities. In addition to those cited in the brief for the defendant, which are in point, we cite Moss v. Sweet, 3 Eng. L. & Eq., 811; Schlesinger v. Stratton, 9 R. Isl., 578; Jameson v. Gregory, 4 Met. (Ky.), 363; Johnson v. McLane, 7 Blackf., 501; Kinney v. Bradlee, 117 Mass., 321; Martin v. Adams, 104 id., 262; Benjamin on Sales, 2d Am. ed., § 597; Hilliard on Sales, 3d ed., p. 28, § 8. In stating that the doctrine above mentioned is sustained by the uniform current of authorities it may be thought we have overlooked a class of cases 'apparently very similar in which a different result was reached. In some of those cases the relation of the parties to the contract has been considered like that of consignor and consignee, or principal and agent; in others the controlling fact was the existence of a general custom which by implication became a part of the contract, whereby it was understood that the title was to remain in the original owner. Such was the case of Meldrum v. Snow, 9 Pick., 441, where the plaintiffs in the replevin suit were brewers and had sent to a retailer a large quantity of beer in the plaintiffs’ casks, which was attached as the property of the retailer while in his cellar. Evidence was given at the trial of a universal custom among brewers and retailers of beer, as beer cannot be removed in warm weather without injury, under which the brewer in the spring delivers to the retailer such quantity of beer as he expects to retail in the ensuing season; the barrels belong to the brewer and are to be returned to him when emptied; the retailer pays for all the beer he vends in the course of the season, but if the beer becomes sour or stale or is lost by fire or other casualty, the loss falls on the brewer, and if any remains at the end of the season it may be returned. It was held that the beer could not be attached as the property of the retailer. The court in giving the opinion said:—“ Retailers who take beer to sell are often persons of very small property, and the custom appears to be so general and well known that the retailer — 213 — would not be supposed to be the owner of the beer. No injury therefore can arise to creditors of the retailer. And it being beneficial to the community to introduce the use of beer, public policy would justify us iu favoring the custom.” In the ease at bar there was no pretence of any custom or any peculiar circumstances that might require a modification of the doctrine as to sale or return. What the dictate of public policy might be we refrain from discussing. But the plaintiff further says that, although he made no attempt to prove any custom affecting the question of title, yet he did offer to prove the secret and unexpressed understanding of each party, but was prevented by the ruling of the eourt, and he bases his appeal in part upon this ground. The plaintiff was asked by bis counsel: “ Did you interpret and understand this order to mean, and act upon the understanding of the order, that the property named in the complaint and order should be and remain your property until disposed of by said Northrop?” And Northrop was asked by the plaintiff: “At the time you gave the order did you intend and consider that the property asked for should be and remain the property of Hotchkiss until sold by you if received ? ” A very brief discussion will suffice to show that the eourt did not err in rejecting this evidence. The bargain was consummated solely through the written order, unaccompanied by any verbal declarations of any kind. The parties were far apart and what each thought was unknown to the other and consequently had no influence in producing the result. All the words indicative of intent are embodied in the writing and there is no such ambiguity as would allow the introduction of any extrinsic evidence whatever, much less such evidence as we are considering. When the contract is in writing the question always is one of construction merely; that is, what the party has expressed by his words and not what he intended to express. The actual intention as an independent fact can only be shown where the language of the writing is — 214 — applicable indifferently to more than one object. 3 Phillips’s Evidence, Cowen & Hills’ Notes, part 2d, page 1388. Fairfield v. Lawson, 50 Conn., 501. In Foster v. Lopes, Ill Mass., 16, the court, with reference to the effect of evidence very similar to that in the case at bar, said:—“ In all cases, however, the intention of the parties as to the time when the title is to pass can be ascertained only from the terms of the agreement, as expressed in the language and conduct of the parties and as applied to known usage and the subject matter. It must be manifested at the time the bargain is made. The rights of the parties under the contract cannot be affected by their undisclosed purposes, nor by their understanding of its legal effect.” This was said with reference to a mere verbal contract. The principle would apply to a written contract with even greater force, as it would be reinforced by another rule to which we have before referred. Glendale Manuf'g Co. v. Protection Insurance Co., 21 Conn., 37. There was no error in the judgment and rulings of the court complained of. In this opinion the other judges concurred®