Julius Kessler & Co. v. Veio

Grant, J. {after stating the facts). Plaintiff insists that the contract was executed, and title passed. Defendants insist that the contract was executory, and that-no title passed except to the goods shipped. Defendants’ letter plainly contemplated the purchase of ten barrels of whiskey, not two barrels. The price per gallon for ten barrels might be less than the price for two barrels. Plaintiff accepted defendants’ offer as to price, quality, quantity, and terms of payment, and in its reply gave its construction to defendants’ order, viz., that it was to be a sale of ten barrels at so much per barrel, cash payment 30 days, less discount. In compliance with this order plain [475] tiff set aside in United States bonded warehouses the ten barrels ordered, numbered them, marked them, issued warehouse receipts therefor, made out an invoice, and sent the same to defendants. The warehouse receipts also notified them that loss or damage by the elements, etc-., was at the risk of defendants, or of the holder of the receipts, should they transfer them. Defendants evidently understood that the sale was subject to payment by them of the government tax. The evidence shows that the only person authorized to gauge the whiskey to the proof asked is a duly appointed United States gauger, and that the two barrels shipped were certified by said gauger as reduced to 95 proof. Defendants’ action in retaining these warehouse receipts, the invoice, and the. letter accompanying them about 24 days, without any objection, is a ratification of the contract as stated in the plaintiff’s letter and thé accompanying documents. Defendants could take it all at one shipment, or they were at liberty to leave it in the bonded warehouses, to' be ordered shipped as they desired. The indorsement on the back of the receipts to whom and where to address orders for shipment has no tendency to show that it was not the intention to pass title. The only act left for the defendants to do was to order shipments as they desired, and the only act left for the plaintiff to do was to ship as ordered. In order to get the goods which were left in possession of the plaintiff by the agreement of the parties, an order was necessary from the defendants. The same order, and the same compliance therewith, would have been required if this indorsement had not been made. The delivery of the warehouse receipts was a sufficient delivery to pass title. Actual delivery is not essential to transfer title to property sold. Rail v. Lumber Co., 47 Minn. 422; People v. Sheehan, 118 Mich. 539. Though the sale may be for cash, cash payment may be waived, in which case the title will pass. Scudder v. Bradbury, 106 Mass. 422; Fishback v. Van Dusen, 33 Minn. 111. Where the agreement is on the part of one to [476] sell and the other to buy a specified article, “the title passes to the purchaser at once, unless the terms of the contract indicate the intention to have been otherwise, and delivery is not essential to the passing of title as between the parties and their privies.” People v. Sheehan, supra. The law will carry into effect the intention of the parties as appearing from their agreement. Lingham v. Eggleston, 27 Mich. 329. The letter and the documents accompanying it were a notice to the defendants that the property had been set aside and designated as their property, and subject to their control. They could have sold and transferred the warehouse receipts, and thereby conveyed a valid title to the property therein described. Merchants’ & Manufacturers’ Bank of Detroit v. Hibbard, 48 Mich. 123; First Nat. Bank of Green Bay v. Dearborn, 115 Mass. 219; Second Nat. Bank of Toledo v. Walbridge, 19 Ohio St. 419; 30 Am. & Eng. Enc. Law (2d Ed.), p. 71. We think that the contract was executed, and that the title had passed. Judgment reversed, and new trial ordered. Moore, O. J., and Carpenter, Montgomery, and Hooker, JJ., concurred.