ROCHESTER & OLEOPOLIS OIL CO. v. HUGHEY.

(Supreme Court of Pennsylvania, 1867. 56 Pa. 322.)

Before THOMPSON, STRONG, READ and AGNEW, JJ. WOODWARD, C. J., absent.

Error to the Court of Common Pleas of Alleghany county: No. 92, to October and November Term, 1867.

In the court below the Rochester & Oleopolis Oil Company brought an action of assumpsit to September 1866, against J. M. Hughey, to recover the price of a quantity of oil alleged to have been sold and delivered by the plaintiffs to the defendant.

The oil having been burned, the question was whether the delivery was complete before the burning.

The plaintiffs gave evidence by the deposition of A. L. Burnett, their agent, that he sold to Owsten, the agent of the defendant, four barge-loads of oil, about 2200 barrels, at $4.50 per barrel, deliverable at Oleopolis, to be measured in the iron tanks of the Pennsylvania Tube Company.

The tube company receives the oil at the oil regions in their tubes; it is transported through the tubes and received into the tanks of the company at the several shipping points on the Alleghany river. The oil of the respective owner is not kept separate, but is measured when received by the tube company, and is delivered to the order of the owner by measurement at the tanks.

The evidence of plaintiffs further was, that 495 gallons had been run on the afternoon of June 19th, 1866, into a barge furnished by Owsten; another barge was placed under the tanks, and about 450 barrels had passed into it, when the oil took fire, and both barges and the oil were burned.

The plaintiffs then offered to prove that by the custom of the trade at Oleopolis the barges to receive the oil were, during the delivery, in the custody and control of the purchaser. This was objected to by the defendant, rejected by the court, and a bill of exceptions sealed.

Owsten, the defendant's agent, testified for him, that he made the contract for four boat-loads of oil, about 2000 barrels; he sent two boats to receive it; he received word that his boat was drawing 25 inches of water, and the river was falling; he went to Oleopolis, and found the river rising, and that another boat was loading outside of his; he told the agent of the company that he would load his boat five inches more, and therefore did not move her from the wharf. After the boat that had been loading near his was filled and moved away, he placed an empty boat by his first boat, and the tube company's hands let the oil into the second boat; before this boat was full, drawing but about 17 inches, it took fire, and both boats with oil were burned. He testified, also: "the boats were not in a condition to run to

Pittsburg; he intended to put more in them, to fill them to 30 inches of water."

In rebuttal, the plaintiff proposed to ask the superintendent of the tube company, "whether, at any time whilst you were superintending, or since, within your knowledge, the tubing company, or the owners of oil in the tanks, kept persons at the works for the purpose of taking charge of the boats whilst the oil was being delivered."

The offer was rejected by the court, and a bill of exceptions sealed for the plaintiff.

The plaintiff requested the court to charge the jury:

1. That if the oil sold by plaintiff to Hughey was to be measured in the tanks of the Pennsylvania Tubing Transportation Company, and delivered in barges furnished by Hughey, and the barges were, during the course of delivery, in possession and control of Hughey, or his agents, the oil was delivered as soon as it entered the barges, so far as to change the property as between seller and buyer, and the plaintiff would be entitled to recover the value of the oil so delivered in the barges.

2. That if the jury find that the barges were, during the time of delivery of the oil, in the custody of the plaintiff, nevertheless, as soon as any portion of the oil was separated from the common bulk, by measurement from the tanks, it became the property of the defendant, and was at his risk, and the plaintiffs would be responsible only for loss occasioned by their negligence.

3. If the jury find that it was the duty of the Pennsylvania Tubing Transportation Company to take charge of and control the barges while the oil was in course of delivery, that the company would be the common agent of plaintiff and defendant, and any portion of the oil, as soon as separated from the common bulk, would be the property of the defendant, and at his risk, and the plaintiff would be entitled to recover for the value of the oil so delivered.

The points were all refused.

The defendant, in his 2d point, requested the court to charge that under the contract the defendant was not bound to accept a delivery of oil from the plaintiff in any less quantity than that of one full boat, the question of whether the boat was full or not to be decided by the defendant or his agent, Mr. Owsten, only.

To which the court answered: "Affirmed if you believe the contract to be for the sale of oil by the boat-loads."

The court (Stowe, A. J.) charged:

"The first point is as to what the contract was:

"If it was to be delivered in boat-loads, and the purchaser had the right to say when the boat was loaded, and you should find that this boat was not accepted by defendant's agent, and that he was not bound to accept it because it was not a boat-load, that is, not filled so that he was bound to take it from the vendor, then there was no delivery in law, and plaintiff cannot recover.

"If you should find, however, that the first boat was reasonably loaded, so that purchaser was bound to accept, or that the boat was actually taken into his charge so as to waive the right to have more oil put into it, then plaintiff can recover for that.

"As to the oil running into the boats at the time, there was no delivery of that in law, because if the contract was for delivery in boatloads, about 2000 gallons as stated by the witnesses on both sides, the boat was not filled so that plaintiff was bound to take it from the vendor.

"As to this latter it is clear under all the evidence that if the plaintiff had shut off the oil and requested defendant to pay for what was in the boat, he could not have compelled defendant to receive it, nor to pay for it.

"In reference to the first boat, was there anything further to be done before the plaintiff had a right to require the defendant to take and pay for it?

"That depends upon whether the barge was sufficiently full, or not being full, whether Owsten, defendant's agent, had already taken possession of it, under such circumstances as to indicate he was satisfied to take it as it was.

"As to the latter the plaintiff cannot recover in this action, because it is not pretended that the boat was in a condition to deliver."

The verdict was for the defendant.

The plaintiffs took a writ of error, and assigned for error the rejection of their offers of evidence; the answers of the court to their points, and to the defendants' second point, and that "the court erred in the whole charge and in each part thereof, and especially in the assumption that the plaintiff was not entitled to recover unless the boats were so loaded that the defendants were bound to accept them."

THOMPSON, C. J. The question was submitted to the jury on the trial below, and they found that the contract between the plaintiff and defendant was for the sale and delivery of four barge-loads of oil, and not a sale of oil by the barrel. Of course until delivery no specific oil passed to the defendant. Until this took place, he had only a right of action to recover for a breach of contract.

It is unnecessary to say whether the defendant was bound to take, and pay for the number of barrels in each completely laden barge; if there be a question about that, it is not here—but whether the contents of partially laden barges in progress of being filled passed as fast as it entered the barge. The court thought not, and so decidedly think we. The defendant could not be compelled to take a partly filled barge when he had contracted for full ones, any more than if he had contracted for a barrel of oil could he have been compelled to accept one half or quarter full. This would hardly be contended for, yet the principle is the same. Winslow, Lanier & Co. v. Leonard, 24 Pa. 14, 62 Am. Dec. 354; Story on Sales, §§ 296, 299. Under the finding of the

jury there is little room for argument against the ruling complained of. Nor do we see any error in rejecting the offers of testimony. Not one of the assignments of error were according to the rule and we might have dismissed them all without notice, but did not, hoping for more accuracy in the future.

Judgment affirmed.38

SECTION 7.-DELIVERY TO CARRIER AS APPROPRIATION

SMITH et al. v. EDWARDS et al.

(Supreme Judicial Court of Massachusetts, 1892. 156 Mass. 221, 30 N. E. 1017.)

HOLMES, J. This case comes before us on the exception of the Old Colony Railroad Company to a ruling of the court below that it should be charged as trustee of the defendants. The defendants have been defaulted. The bill of exceptions purports to state the evidence introduced on the motion to charge the trustee, but does not disclose the findings of the judge. We assume them to have been the most favorable for the ruling which the bill of exceptions warrants. The defendants in Ohio ordered of the plaintiffs, who are manufacturers of boots and shoes in Massachusetts, through the plaintiffs' traveling salesman, certain calf and buff shoes, to be made according to a sample shown to the defendants. It was assumed at the argument, and we assume, that the contract bound the defendants, that there is no question under the statute of frauds, and that the shoes were made according to sample. They were forwarded over the Old Colony Railroad, we must assume, if it be material, at the defendants' expense, and were deliv

38 In Colonial Ins. Co. v. Adelaide Marine Ins. Co., 12 A. C. 128 (1886), there was a contract to supply a cargo of wheat for a vessel chartered by the buyer. When part of the wheat had been loaded, the vessel and the wheat on board were lost by the stranding of the vessel during a gale. The buyers paid for the lost wheat; the plaintiff insurance company paid the loss to the buyers, and brought action against the defendant company on a contract to cover. Held, the buyers had an insurable interest. Sir Barnes Peacock: In the present case, in putting the wheat on board the Duke of Sutherland, the contractors were delivering it to the purchasers in pursuance of their contract to put it free on board; the master of the vessel which had been chartered by them being their agent to receive it on their account. Their Lordships are of opinion that the delivery of the wheat from time to time was a delivery to the purchasers, that it vested in them the right of possession as well as the right of property and that at the time of the loss it was at their risk. The right which they had to return the wheat which had been delivered, in the event of the sellers neglecting, without lawful excuse, to complete the supply, did not prevent them from having an insurable interest."

ered to the defendants. This mode of forwarding undoubtedly was authorized by the contract. The defendants accepted the buff shoes, but refused to accept the calf shoes, and shipped the latter back to the plaintiffs by the same railroad, The plaintiffs refused to accept them, sued the defendants for the price of the shoes, and trusteed the railroad company. The calf shoes mentioned are the goods for which the railroad company was charged.

It is argued for the trustees that, although the defendants were guilty of a breach of contract in refusing to accept the calf shoes, yet, as the shoes were not in existence at the date of the contract, they did not become the defendants' property until tendered to and accepted by the defendants, after they were made.

Of course, the title to the shoes could not be vested in the defendants without their consent. But, in the present state of .the law, it does not need argument to show that a contract can be made in such a way as subsequently to pass the title, as between the parties, to goods unascertained at the time when the contract is made, without a subsequent acceptance by the buyer, if the contract commits the buyer in advance to the acceptance of goods determined by other marks. Blanchard v. Cooke, 144 Mass. 207, 227, 11 N. E. 83; Goddard v. Binney, 115 Mass. 450, 15 Am. Rep. 112; Rodman v. Guilford, 112 Mass. 405, 407; Brewer v. Railroad Co., 104 Mass. 593, 595; Nichols v. Morse, 100 Mass. 523; Middlesex Co. v. Osgood, 4 Gray, 447, 449; Aldridge v. Johnson, 7 El. & Bl. 885, 899.

In the case of goods to be manufactured, the seller, as he has to tender them generally, has the right to appropriate goods to the contract, so far that, if he tenders goods comformable to it, the buyer's refusal to accept them is a breach. The buyer cannot say that he would have accepted some other goods had they been tendered. When goods are to be manufactured and forwarded by a carrier to a buyer at a distance, the seller's delivery of such goods to the carrier, as bailee for the purchaser, passes the title. The seller cannot forward them until they are specified. The delivery is an overt dealing with the goods as those to which the contract applies, and puts them into a possession adverse to the seller. Although not strictly a delivery, it is an act having the legal effect of a true delivery, which, in common legal language, it is said to be. Hallgarten v. Oldham, 135 Mass. 1, 9, 46 Am. Rep. 433; Orcutt v. Nelson, 1 Gray, 536, 543; Merchant v. Chapman, 4 Allen, 362, 364; Kline v. Baker, 99 Mass. 253, 254. The act is required of the seller by the terms of the contract, and thus is assented to in advance by the buyer, on the condition that, as supposed, the goods answer the requirements of the contract. Therefore it is a binding appropriation of the goods to the contract, and passes the title, as we have said. Putnam v. Tillotson, 13 Metc. 517, 520; Merchant v. Chapman, 4 Allen, 362, 364; Oaell v. Railroad Co., 109 Mass. 50; Wigton v. Bowley, 130 Mass. 252, 254; Fragano v. Long, 4 Barn. & C. 219; Wait v. Baker, 2 Exch. 1, 7.