Delaney v. Globe Shipbuilding Co.

Jones, J. It was alleged in the complaint that it was mutually agreed that the defendant should sell the tug for the sum of $2,750 “and deliver the same upon full payment of the purchase price in the condition in which it was at the date of said agreement and at the defendant’s dock, afloat and anchored thereat,” and that it was “understood and agreed between the parties that defendant would retain possession of said tug until the full payment of said purchase price was made, and preserve the same from damage or loss, and upon full payment of said purchase price deliver said tug to plaintiffs at the place and in the condition in which said tug was at the time of making said agreement.” [170] There was no evidence of any such agreement, and the case was tried by the plaintiff on the theory that without any such agreement the title and the risk remained in the defendant until the execution of the bill of sale. There was no parol testimony showing the intention of the parties as to the date of the delivery or the time when the title should pass. It is elementary that the timé when the transfer of the title takes place depends upon the intent of the parties to the contract. That intention may be determined by the written evidence, and, if the subject is left in doubt, intention may be shown by the statements of the parties, subject to the limitations governing the reception of parol evidence and by the circumstances -surrounding the transaction. Plaintiffs’ counsel lay great stress upon the claim made by them that there was no delivery of possession, that no actual possession was given and could not be given, and that this bears upon the question of intention. Under the conditions existing when the memorandum of sale was made, the following section of the statute is very significant: “Where there is an unconditional contract to sell specific goods, in a deliverable state, the property in the goods passes to the buyer when the contract is made and it is immaterial whether the time of payment, or the time of delivery, or both, be postponed.” Sec. 1684f — 19. This was undoubtedly an unconditional contract of sale of specific goods. We see no reason why the tug was not in a deliverable state on the 23d of February, and the fact that it may not have been then practicable to remove the boat to Buffalo seems to us immaterial. In a very recent case this section of the statute was con- ' strued by this court. It was a case perhaps involving more difficulty than the instant case, since the claim was vigorously made that the sale was conditional. In the opinion by Mr. Justice Rosenberry it was said: “Whether or not the title to the goods described in the contract passed to the defendant depends upon the intention [171] of the parties. See. 1684i — 18, Stats. The contract itself does not in terms say when' the title should pass. Recourse must be had, therefore, to rules of construction. Sec. 1684¡f — 19 establishes the rules for ascertaining the intention of the parties as to the time at which the property in goods is to pass to the buyer where there is no specific provision in the contract. . . . “In this case the goods were ascertained and in a deliverable state. The buyer had the right at any time before June 1, 1920, upon payment of the remainder of the purchase price, to take the goods, and if the plaintiff had, upon tender being made to it,,, ref used to deliver the goods, the right' of the defendant to recover the same in an action of replevin would have been complete.” Boscobel v. Muscoda Mfg. Co., ante, p. 62, 183 N. W. 963. Plaintiffs’ counsel argue that it must have been the intention of the parties that further acts were to be performed before the transfer of title should take place — at least that a bill of sale, was to be executed; but no mention of a bill of sale was made until more than a month after the bargain was made. It is also contended that the language in the bill of sale ip which the defendant is described as owner and the words of bargain and sale afford evidence that the title had not been transferred, but we regard the bill of sale as merely formal evidence of -the bargain which had been made on February 23d. Plaintiffs’ counsel argue that, whatever may have been the technical rights of the parties, the defendant was guilty of such concealment and fraud that it should respond in damages. There is no claim that the defendant was in fault for the sinking of the tug. This was the result of natural causes for which neither party was to blame. When the defendant heard of the danger it did what it could to prevent it pursuant to the telegram of March 17th. In these transactions neither party seemed to be acting from purely altruistic motives. On the one hand the defendant failed to notify the' plaintiff of the condition of the tug. On the other hand, plaintiff Captain Delaney [172] requested defendant to place the value of the tug at $8,500 to any one making inquiry, and he caused that amount to be placed- in the bill of sale as the consideration although the purchase price was only $2,750. There was testimony that he had told his associates that he had paid $8,500. The defendant insisted that the tug was at the risk of the plaintiff after February 23d. In view of the statute and the authority above quoted we consider- that this claim rested upon solid ground, and it cannot be said that he was guilty of any actionable fraud. We agree with the trial court that the title passed on February 23d. Defendant’s counsel argue that even if this was not true, plaintiff would be prevented from recovering by sub. 2 (b), sec. 1684i — 8, Stats., because the contract was for the sale of specific goods and indivisible, and that since plaiñtiff did not elect to rescind and recover the purchase money paid, but took the boat in its damaged condition, he was bound to pay the purchase price. In view of the conclusion we have reached it is not necessary to consider this question. By the Court. — Judgment affirmed.