First National Bank v. Crowley

Christiancy, Oh. J. This was an action of replevin, brought by the bank against the defendant, for two hundred tons of pig iron, claimed to have been purchased by the bank from the Schoolcraft Iron Company. The judge, before whom the trial was had without a jury, made a special finding of facts in the nature of a special verdict, to which reference is here made for a full statement of the facts. Judgment was rendered for the defendant, who, as sheriff, had seized the iron upon two executions against the iron company; the judge holding the sale to be incomplete for want of delivery, and that the property did not pass to the plaintiff. The question is, therefore, the same as in the case of Whitcomb v. Whitney, supra ; our decision in which has just been réad by my brother Cooley. When, and under what circumstances, delivery is necessary to pass the property under a contract of sale, and when it will pass without delivery, have been so clearly explained by my brother Cooley in the opinion just read, as to make it quite unnecessary to go over the same ground again, as the same principles are involved in both cases. But, while the facts in the two cases are in some respects similar and the principles involved are the same, yet the facts differ so materially in some of their essential characteristics that, in applying to them the same principles, an opposite result must be reached. Thus, in the former case, the contract was for the purchase of all the lumber of certain specified qualities which the vendor should make at a certain place during the season. The vendor could not, therefore, sell any of it without violating his contract; and as fast as the different qualities [497] were ascertained and set apart, they were identified as the very lumber by the contracts agreed to be sold. In the present case the contract was to sell two hundred tons of No. 1 pig iron, to be thereafter delivered; the vendor being engaged in the manufacture of various grades of iron at their furnace, and producing large quantities of each daily. The contract would, therefore, be satisfied with any iron of this grade; and the vendors were, therefore, at liberty to sell any particular iron, though of the same grade, which they then had or might subsequently make, including the very iron in dispute, had they chosen to do so, without any violation of the contract with the plaintiff. And they were at liberty to enter into just as many contracts of the same kind with other parties- as they might choose, without any violation of that made with the plaintiff; as the contract with the plaintiff referred to no specific iron, and would be satisfied with the requisite amount .of any iron of the quality called for. In the other ease the lumber was inspected, separated into its various classes, and the amount of each set apart, ascertained and accepted by the agent of the purchaser; and was piled upon the dock awaiting shipment, when the purchaser should choose to send his vessel for it. But in the present case all the iron m.anufaciured at the furnace of the vendors was piled as fast as made, upon the dock, and though in separate piles according to the, several qualities as the vendors chose to determine it, the iron in question, though of the quality called for, had never been inspected for, or seen by, the plaintiff or any agent of the plaintiff. There were no marks upon it, or upon any of the respective piles; and until something further should be done to identify it as the very iron intended by the contract of sale, it would be impossible to know that this was the particular iron' covered by that contract. Nothing had been done to dis [498] tinguisb it from any other iron of the same grade which had been, or might thereafter be, manufactured by the vendors; and though they might have intended it for the plaintiff, yet the latter had received no notice through its agent or otherwise, that it had yet been manufactured, and was not even aware of its existence. And it does not appear that even the vendors knew its weight or amount. Clearly, under this state of facts, the vendors would have had the right to sell and deliver this particular iron to any other person, and the purchaser would hold it against the plaintiff. The vendors would have had a perfect right to say to the plaintiff: “True, we agreed to sell you two .hundred tons of iron, but it was not this particular iron, though of the same quality, and ,we will proceed to manufacture it for you as fast as we can.” Had this iron, instead of being seized on execution, been stolen from the dock or thrown into the lake, in such manner as to be irretrievably lost, and the vendors had insisted that it was the plaintiff’s property, and that the latter should bear the loss, would it not have been a conclusive reply for the plaintiff to say? “You not only had never delivered the iron, but you never even gave me notice that it was ready for delivery, so that I had any right to take it. I not only never saw, inspected or accepted it, nor knew its quantity or quality; but you had done nothing to indicate that you intended it for me as a part of the iron called for by the contract. You treated it as you did all the rest of the iron manufactured at your works, and did nothing by .which I could know that it was intended to fill my contract. The iron was yours, and you must bear the loss.” Had the plaintiff, under the circumstances "existing at the time of this levy, called upon the vendors and demanded this iron, and the latter had refused to give it up, it is [499] clear the plaintiff could not have maintained replevin for it against the vendors, and therefore equally clear that'he cannot maintain it against the sheriff who has seized it as the property of the vendors. . . But it is urged that the judge has expressly found that this particular iron “ was part of the two hundred tons bargained for as aforesaid by the plaintiff, and is the same described in the declaration.” But we must take the whole finding together, and the other facts found show that it was not in the power of the judge, under such a state of facts, to find this literally as a fact, when it had not been identified as between the parties, as the evidence shows it had not. The most that can be meant by this (and this is clearly enough shown in the subsequent remarks of the judge in applying the law to the facts) is, either that it was iron of the same description as that bargained for, or that the vendors intended it for the plaintiff under the-contract. We think, therefore, the circuit judge was correct in his conclusion that the property had not passed to the plaintiff. . The defendant elected to waive a return of the property, and to take judgment for its value and interest, which was assessed by the court at two thousand three hundred and forty-one dollars and fifty-six cents. This was somewhat more than the amount of the 'executions under which the defendant had levied; and this is urged as error under section 29, chapter 124, Be vised Statutes of 1846 {Comp. L., § 5088, as amended by act of 1865), which provides that, “when either of the parties to an action of replevin, at the time of the commencement of the suit, shall have only a lien upon, or a special property or part ownership in, the goods and chattels described in the writ, and is not the general owner thereof, that fact may be proved on the trial, or on the assessment of value, or on the assessment of [500] damages in all cases arising under this chapter, and the finding of the jury or court, as the case may be, shall be according to such fact; and the court shall thereupon render such judgment as shall be just between the parties.” Undoubtedly, under this provision, had it appeared that the plaintiff had the right to the property or its possession, subordinate only to the executions, or had the property been taken by the defendant from the possession of the plaintiff, the assessment and the judgment should only have been for the amount of the executions. But here the property was not taken from the possession of the plaintiff, and it clearly appears that plaintiff had no right to the property or its possession; but having obtained the whole property under the writ from the sheriff, who at the time had the right of possession of the whole under the executions, wo think the sheriff has the right, as against the plaintiff, to recover the whole, being accountable over to the vendors for the excess beyond the executions and costs, on the same principle that he would have been liable to return any surplus of the property after selling enough to satisfy the executions, or to pay over any surplus of proceeds on a rightful sale (where that is permitted) for more than the execution debt. The judgment of the circuit court must be affirmed, with costs. Cooley and Campbell, JJ., concurred. G-raves, J., did not sit in this case.