Warren v. Buckminster

Eastman, J. On comparing the evidence in the case with the first count in the plaintiff’s declaration, it is quite probable that that count sets forth very nearly the true bargain between the parties. But the plaintiff’s evidence failing to sustain that count, he relies, as he had a right to do, upon his second count, which is a general one for money had and received. In order to sustain the second count, however, he must make it appear that he had purchased the sheep, that they were his property, and that the defendant had sold them and received the money therefor. Showing these facts, he could maintain the action for so much money had and received for his use. The foundation of the action, then, rests upon the question whether there was any legal change of property from the defendant to the plaintiff. It is a well established principle, in the doctrine of sales of chattels, that if any thing remains to be done, as between the seller and buyer, before the goods are to be delivered, a present right of property does not attach in the buyer. 2 Kent’s Com. 495; Wallace v. Breeds, 13 East’s Rep. 522; Hanson v. Meyer, 6 East 614; McDonald v. Hewett, 15 Johns. Rep. 349; Barret v. Goddard, 3 Mason’s Rep. 112; Davis v. Hill, 3 N. H. Rep. 382. And where the goods sold are mixed with others, and are not separated from the general stock of the seller, the sale is incomplete. They must be ascertained, designated or separated from the stock or quantity with which they are mixed, before the property can pass. Austin v. Craven, 4 Taunton’s Rep. 644; White v. Wilkes, 5 Taunton 176; Bush v. Davis, 2 Maule & Selwyn 397; Shepley v. Davis, 5 Taunton 397; Tagura v. Burnell, 2 Camp. Rep. 240. Chancellor Kent, in discussing the subject, says that it is a fundamental principle pervading every where the doctrine of sales of chattels, that if the goods be sold by number, weight, [343] or measure, the sale is incomplete until the specific property be separated and identified. 2 Kent’s Com. 496; Simmonds v. Swift, 5 Barn. & Cress. 857. Upon the doctrine of these authorities, it is quite clear that the sheep in question, being in the defendant’s flock, should either have been separated from the flock, or have been selected or designated by marking or otherwise, before the property could pass to the plaintiff. There was evidence on the part of the plaintiff tending to show an absolute sale. The defendant’s evidence, on the contrary, tended to show that the sale had never been completed, and that the sheep had never been designated or selected from the flock. We think too that the defendant’s evidence is confirmed by the first count in the plaintiff’s writ. The evidence being somewhat contradictory, the court properly instructed the jury that, if they found that the fifteen sheep were ever selected from the flock, and the bargain closed between the parties, their verdict should be for the plaintiff. The further instructions of the court might, when taken as an abstraction, disconnected from the evidence in the case, be not strictly correct; for the separation or selection of goods may be made by the buyer and seller together, or by the seller and agreed to by the buyer. Tn the latter case, however, it is still the indirect act of the purchaser, done or sanctioned by him. The evidence here tended to show that the number agreed upon was not selected or separated from the flock; that the plaintiff was to come after them himself, or send a man after them. It was at that time that they were to be selected, and evidently the plaintiff or his agent was to be present. There is nothing in the evidence from which it can fairly be inferred that the selection was to be made by the defendant, but, on the contrary, that the plaintiff or his agent was to have the privilege of doing it. There was no evidence whatever of any bargain and sale prior to that testified to by Nourse. The instructions, when considered with the evidence, evidently mean that the jury should be satisfied that the plaintiff did as he [344] agreed; that is, that he or his man went for the sheep, and that they were accordingly selected by the one or the other. But there is another feature in this case which shows that the plaintiff ought not to recover. The contract between the parties was, that the sheep should be taken at a specified time. This appears by the testimony on both sides; and it also appears that the plaintiff did not come for them, according to the agreement. He then had no claim upon them after the specified time, and the tender of the money paid was a bar to any action in the premises. It seems that if the buyer does not take the article at the time agreed upon, the vendor may sell the same at auction and recover the deficiency in the amount. 2 Kent’s Com. 504. Much more then should the seller, where the article has not been selected and the buyer does not come for it at the time agreed, treat the contract as -incomplete and dispose of the property. Judgment on the verdict.