State ex rel. Pittsburgh Coal Co. v. Patterson

Marshall, J. A question of practice is suggested as to whether it was proper for the trial court to close the contro-wersy by formal findings of fact and conclusions of law, in form as in case of a trial of an equitable action. Strictly speaking, no such proceedings were necessary. The certio-rari only presented questions of law. The theory upon which -a proceeding of a c/uasi-judicial body, involving matters of — 480 — fact determinable upon evidence, is challenged for judicial review, is that such evidence does not reasonably admit of a finding but one way and that contrary findings are errors of law and that such errors are jurisdictional as regards such bodies. State ex rel. Augusta v. Losby, 115 Wis. 57, 90 N. W. 188; State ex rel. N. C. Foster L. Co. v. Williams, 123 Wis. 61, 100 N. W. 1048; State ex rel. J. S. Stearns L. Co. v. Fisher, 124 Wis. 271, 102 N. W. 566. The question at issue here turns on the contract. If according thereto the coal, upon being delivered on the dock in separate piles, corresponding to the contracts, did not become the property of, the respective railway companies, but the transition of title was intended to occur only upon the property being loaded upon cars to be shipped out to such companies, then it was assessable to respondent, and the judgment must-be reversed. The evidence taken before the board of .review, aside from the written contracts, was and is valuable only as showing that the coal, at the time of the assessment, had only reached the stage, in execution of the contracts, of segregation into-specific lots upon the dock to await delivery on cars as called for. It is elementary that, in case of an executory contract for the sale of personal property, when the title passes is matter of intention to be determined from the agreement; by its letter where there is no ambiguity, and, otherwise, by its letter in the light of such circumstances as may properly be-considered in aid of determining the intention by rules for' judicial construction. Generally speaking, in case of an executory contract to sell and deliver personalty, nothing in the statute of frauds interfering, when there is nothing left, to be done on the part of the vendee or vendor, or the latter and the vendee jointly, and the chattels have been set aside- and appropriated to the contract, the amount thereof and price all settled, the title passes, but such passing may, never — 481 — theless, wait upon change of possession, even though the price has been agreed npon and paid, or npon the doing of something after transition of possession. Such passing may occur, leaving the amount of property and the amount of money to he paid, yet to he ascertained, or any other of many things that might he stated, according to the intention of the parties embodied in the sale contract. These principles are so elementary that we will not take time and space to enlarge npon them or specify the many circumstances that have been held to indicate an intention to pass title in advance of change of possession. The contracts in question each contain two groups of features. The first and fifth clauses make a plain agreement for a sale of coal delivered from the dock f. o. b. cars there, the same to he paid for according to weights there determined, at a specific price per net ton of 2,000 pounds. There would he little room for controversy but that, if there was nothing in the contract to indicate to the contrary, the intention of the parties was to have title pass at the time of such determination of'quantities and delivery. The general rule is, nothing appearing to the contrary, that in case of an executory contract for the sale and delivery of chattels f. o. h. cars, at a particular point, the intention of the parties is presumed to he that the title shall pass upon such delivery occurring. In Vogt v. Schienebeck, 122 Wis. 491, 100 N. W, 820, this court said, referring to many authorities to that effect, that “a sale f. o. b. cars means that the subject of the sale is to he placed on cars for shipment without any expense or act on the part of the buyer, and that as soon as so placed the title is to pass absolutely to the buyer, and the property be wholly at his risk, in the absence of any circumstances indicating” a different purpose. That was referred to with approval in Fromme v. O’Donnell, 124 Wis. 529, 103 N. W. 3, the court holding that a sale for an agreed price f. o. b. cars at a stated place, must, unless controlled by — 482 — some other feature of the sale contract, unmistakably show an intention to pass title to the subject of the sale upon delivery thereof, free of expense, to the vendee on cars at the designated place, under the general rule that, nothing appearing efficiently to the contrary, “as between vendor and vendee the title to the subject of the transaction passes from the one to the other when the terms of the sale are agreed upon and everything the vendee has to do with the matter has been done.” The second group of features in the contracts, upon which respondent must rely to control the first, relates to acts of the vendor, or the vendee and vendor conjointly, creating the physical competency of the former to respond promptly to requests for performance of the final act, to wit: delivery of coal f. o. b. cars at the dock, not only as to having the requisite stock to draw from, as to each particular vendee, but as to such stock being of the kind called for by the agreement. The second clause relates to the time of accumulation of the stock in storage on the dock, and opportunity of representatives of the vendee to inspect at the mine and otherwise the coal proposed to be accumulated, for certainty that the stock approved at the mine should actually reach the particular pile on the dock set aside to be delivered from in final performance, indicating, unmistakably, a purpose to approve of the stock before transportation thereof by cars from the mine to the vessels used to accomplish the final transit to the coal piles on the dock, and to have the coal so approved, barring damages by negligent handling or other damages not ordinarily incident to proper handling, such as the contract called for. It contains a further paragraph,- regarding the assurance of correct weights, which evidently does not relate to weights at the mine, since it refers to a rectification of mistakes when discovered, which, manifestly, would be inconsequential to the vendees, except as to weight on cars at the final delivery point. The fourth clause relates to isolation on the dock of the — 483 — stock to be drawn from,to fill a particular contract, in Harmony with the general scheme that the identical coal approved at the mine, and none other, should be used to make final deliveries from, and that competency to make such deliveries should not he impaired by dealings of the vendor with others. The sixth and last clause of the contract contains a stipulation as to accumulation of the requisite stock of coal on the dock set aside by itself to accommodate the contract, in case of failure to do so before the close of navigation. The words “deliver” and “delivery” are used, but not in the sense of final delivery; only in the sense of delivery for the purposes of competency to make the final delivery mentioned in the first clause. There is little, if anything, in the second group of features indicating that they have to do with anything except preparation for final delivery f. o. b. cars at the dock, provided for in the first clause. The idea that the parties intended the title to pass to the vendees at any instant prior to the consummation of the final act of delivery, is negatived by the second paragraph of the second clause, to the effect that the coal at all times, till delivered on cars at the dock, shall he at the risk of the vendor subject to ordinary handling. We cannot escape the conclusion that the parties contemplated that the transition of title to the coal should wait upon placing the same on ears at the dock, and doing everything in that regard suggested by the term “free on board cars;” that loss of coal prior to that time, by any means other than ordinary handling, would fall on the vendor. Little help is afforded in a case of this sort by precedents. It is governed by familiar principles of law and by the particular intent, evidenced by the particular contract, in the light of its own peculiar circumstances. Perhaps if precedents were needed, Miller v. Seaman, 116 Pa. St. 291, 35 Atl. 134, is as near analogous to this, as to facts, as any case which — 484 — can be readily found. The sale was of specific piles of lumber located in a lumber yard, to be inspected, measured, and paid for, f. o. b. cars at the yard, and so delivered as ordered, provided that if not all ordered within a specific time, the balance to then be inspected and measured on the yard and paid for. Before all of the lumber was ordered out part of it was carried away by a flood. It was held that the lumber so carried away was the property of the vendor, as title by the contract was not to pass in advance of delivery f. o. b. cars as agreed upon. By the Court. — The judgment is reversed, and the cause remanded with directions to render iudgment affirming the decision of the board of review.