Gill v. Benjamin

Cassoday, J. Tbe facts are undisputed. Does tbe law put tbe loss of the 155 cords of wood upon tbe plaintiifs or the defendant? The contract when made was executory. Tbe plaintiifs thereby agreed to sell and deliver to tbe defendant 1,000 cords of wood. Tbe wood -was to be of tbe kind and quality named in the contract. No particular 1,000 cords of wood was then designated nor described therein. It was all “ to be delivered from Gill’s Pier . . . over tbe rail of tbe vessel.” In was, moreover, “ to be delivered from time to time” at that place, “as wanted, during the season of navigation of 1884.” Tbe Bailey was chartered by tbe captain of the defendant’s vessel, and for tbe purposes of tbe contract must be regarded the same as though it were tbe property of the defendant. True, each cargo was “ to be piled on the defendant’s dock in Milwaukee ” as taken from the vessel, and to be measured and paid for at the price named when so piled. This raises the question whether, by the terms of the agreement, the title of each cargo became vested in the defendant when delivered to and “ over the rail of the ” defendant's vessel at Gill’s Pier, or remained vested in the plaintiifs while being carried across the lake on the defendant’s vessel, and until taken from his vessel and piled on his dock in Milwaukee. If the title to each cargo remained vested in the plaintiifs until piled on the defendant’s dock in Milwaukee, then did it continue to be vested in them until measured ? and if until measured, then did it remain vested in them until paid for? The piling on the dock was apparently to facilitate the measurement, and the measurement was apparently to ascertain the amount to be paid. But can it be that the title of a cargo so piled upon the defendant’s dock and measured did [368] not become vested in the defendant until he had paid for it? And if it became vested in him before he paid for it, then why not before it was measured or piled on his dock or taken from his vessel? The words “ sell and deliver to you . . . from Gill’s Pier, . . . over the rail of the vessel,” clearly designated that as the place of delivery. On the delivery of any cargo being made in that way at that place, the possession of such cargo was manifestly intended by the contract to immediately pass entirely from and beyond the control of the plaintiffs into the absolute and exclusive possession and control of the defendant. The vessel upon which such cargo was so placed belonged to the defendant, and was controlled by his captain; or else the vessel was chartered by his captain for his service in the transportation of such cargo, and hence was, so far as the contract was concerned, his vessel for that voyage for the purposes of such transportation. The plaintiffs had no control over the management of the vessel, nor the direction in which it should go, nor the port at which it should land. The contract, though executory when made, yet as it contemplated a delivery from time to time, as wanted, in separate cargoes, each of which was to be paid for as indicated, it was clearly severable. Scott v Kittanning Coal Co., 89 Pa. St. 231; Goodwin v. Merrill, 13 Wis. 737; Sawyer v. C. & N. W. R. Co. 22 Wis. 385. This being so, it necessarily follows that, as each cargo was delivered on board the defendant’s vessel, the contract as to such cargo became an executed sale, so far as the plaintiffs were concerned, unless the mere fact that their man was expected to participate in the measurement of such cargo when piled on the defendant’s dock prevented the title to such cargo from becoming vested in the defendant until so measured. Morrow v. Reed, 30 Wis. 81; Morrow v. Campbell, 30 Wis. 90; Fletcher v. Ingram, 46 Wis. 191; Scott v. Kittanning Coal Co. supra. [369] Such being the wording and effect of the contract, we must hold that each cargo, on being delivered “ over the rail of the vessel ” sent for that purpose by the defendant or his captain, became at once the property of the defendant, unless the stipulation for piling and measuring on the defendant’s dock, before payment, prevented the title from so vesting in him. Of course the 155 cords, being lost, was not so piled on the defendant’s dock in Milwaukee, nor measured; and therefore it is claimed there is no obligation to pay. The contract contemplates no such loss. It contains no stipulation as to any one taking the risks of the perils of the lake. Without such stipulation, such risk would necessarily fall upon the owner of the cargo at the time of loss. It will be observed that the contract contains no stipulation for any inspection or sorting of the wood on the defendant’s dock. The wood was to be taken from the vessel, piled and measured on the dock; but it is silent as to who should do the piling or the measuring. It seems to be conceded that the defendant was to do the piling. It may be inferable that the plaintiff’s man was expected to witness or participate in the measurement of every cargo, as he did of each that was so piled on the dock. Was-such piling and measuring a condition precedent to the vesting of the title thereof in the defendant* Where the manifest intention of the parties is to transfer the title, the sale may be complete, notwithstanding the property is yet to be measured, and the amount of the price yet to be ascertained. Sewell v. Eaton, 6 Wis. 490; McConnell v. Hughes, 29 Wis. 537; Morrow v. Campbell, 30 Wis. 90; Fletcher v. Ingram, 46 Wis. 191. So held where, by the agreement, the vendee was to have the title to saw-logs as soon as the vendor deposited them in a certain place. Morrow v. Reed, 30 Wis. 81. These principles are fully recognized and sanctioned in Pike v. Vaughn, 39 Wis. 505, relied upon by counsel for the defendant. Thus, in Dixon v. Baldwen, 5 East, 175, A. & B., traders in London, [370] ordered goods from the defendants at Manchester to be sent to M. & Co., at Hull, for the purpose of being afterwards sent to the correspondents of A. & B., at Hamburg, and the defendants sent the goods to M. & Co. at Hull to be shipped by them to Hamburg, as usual, pursuant to the order; and it was held, as between the buyer and seller, the right of the defendants to stop as in transitu was at an end when the goods came to the possession of M. & Co. at Hull; for they were for this purpose the appointed agents of the vendees, and received orders from them as to the ulterior destination of the goods; and the goods, after their arrival at Hull, were to receive a new direction from the vendees. To the same effect, Kendal v. Stevens, L. R. 11 Q. B. Div. 356; Ex parte Miles, L. R. 15 Q. B. Div. 39. We must hold that the intention of the parties, as expressed in the contract, was that the title to each cargo should immediately vest in the defendant on being placed on board of the defendant’s vessel at Grill’s Pier. True, the contract provides, in effect, that each cargo was to be “ paid for when piled on ” the defendant’s dock in Milwaukee, and that the cargo of 155 cords was never so piled on that dock. But the undisputed evidence shows that the failure to so pile on the defendant’s dock was in no way attributable to the plaintiffs. It may be conceded, also, that it was not the fault of the defendant nor his agents, although the cargo was in the exclusive possession of the defendant at the time it was lost. Assuming that the loss of the cargo was not the fault of the defendant’s agents, then such piling on the defendant’s dock was rendei-ed impossible solely by the act of God, and hence the defendant, upon its loss, thereupon became liable for its value. Powers v. Dellinger, 54 Wis. 389; Nugent v. Smith, L. R. 1 C. P. Div. 423; 2 Benj. Sales, § 861. It appears from the undisputed evidence that the 155 cords of wood lost was of the kind and substantially of the [371] quality called for in the contract, and the same as the other wood which had been received by the defendant without any objection, although a deduction was made in the price of twenty-six cords called culls. The title to the 155 cords of wood having become vested in the defendant when the same was placed on board of the Bailey, and the captain of the Bailey being in law the agent of the defendant for the purpose of receiving the wood, and having received the same on board the Bailey without any objection as to quality, and the wood having been lost, as indicated, it may be very doubtful whether any damages could be recovered in this action, even had there been a counterclaim for such damages in the answer. Locke v. Williamson, 40 Wis. 377. But here there was no such counterclaim, and hence the question need not be determined. , The defendant does claim damages by way of counterclaim, however, for the failure to deliver the balance of the 1,000 cords called for by the contract, including the 155 lost. But the contract only required that the plaintiffs should deliver the wood at their pier to the defendant’s vessel from time to time, “ as wanted, during the season of navigation of 1884.” There is ho evidence of any failure to deliver any wood “ as wanted ” by the defendant during that season, nor of any unreasonable delay in furnishing wood to any vessel calling for it at the plaintiff’s pier in behalf of the defendant. ¥e discover no ground upon which the defendant is entitled to any damages under his counterclaim. Simpson v. Crippin, L. R. 8 Q. B. 14; Higgins v. D., L. & W. R. Co. 60 N. Y. 553; Scott v. Kittanning Coal Co. 89 Pa. St. 231; Haines v. Tucker, 50 N. H. 307. By the Court.— The judgment of the county court is affirmed.