TARLING v. BAXTER..

(Court of King's Bench, 1827. 6 Barn. & C. 360.)

Assumpsit to recover back £145 paid by the plaintiff to the defendant's use. The declaration contained counts for money had and received, and the other common counts. Plea, general issue, with a notice of set-off for goods sold and delivered and bargained and sold. At the trial before Abbott, C. J., at the London sittings after Hilary term, 1826, a verdict was found for the plaintiff for £145, subject to the opinion of this court on the following case.

On the 4th of January, 1825, the plaintiff bought of the defendant a stack of hay belonging to the defendant, and then standing in a field belonging to the defendant's brother. The note signed by the defendant, and delivered to the plaintiff, was in these words: "I have this day agreed to sell James Tarling a stack of hay, standing in Canonbury Field, Islington, at the sum of one hundred and forty-five pounds, the same to be paid on the 4th day of February next, and to be allowed to stand on the premises until the first day of May next." And the following note was signed by the plaintiff, and delivered to the defendant. "I have this day agreed to buy of Mr. John Baxter, a stack of hay, standing in Canonbury Field, Islington, at the sum of £145, the same to be paid on the 4th day of February next, and to be allowed to stand on the premises until the first day of May next, the same hay not to be cut until paid for. January 4th, 1825."

At the meeting at which the notes were signed, but after the signature thereof, the defendant said to the plaintiff, "You will particularly oblige me by giving me a bill for the amount of the hay." The plaintiff rather objected. The defendant's brother, S. Baxter, on the 8th of the same month of January, took a bill of exchange for £145 to the plaintiff, drawn upon him by the defendant, dated the 4th of January, 1825, payable one month after date, which the plaintiff accepted. The defendant afterwards indorsed it to George Baxter, and the plaintiff paid it to one Taylor, the holder, when it became due. The stack of hay remained on the same field entire until the 20th of January, 1825, when it was accidentally wholly consumed by fire, without any fault or neglect of either party.

A few days after the fire, the plaintiff applied to the defendant to know what he meant to do when the bill became due; the defendant said, "I have paid it away, and you must take it up to be sure: I have nothing to do with it, why did you not remove the hay?" The plaintiff said, "he could not, because there was a memorandum 'that it should not be removed until the bill was paid;' would you have suffered it to be removed?" and the defendant said, "certainly not." The defendant's set-off was for the price of the hay agreed to be sold. as aforesaid. The question for the opinion of the court was, whether WOODW.SALES (2d ED.)-2

the plaintiff under the circumstances was entitled to recover the sum of £145 or any part thereof.

BAYLEY, J. It is quite clear that the loss must fall upon him in whom the property was vested at the time when it was destroyed by fire. And the question is, in whom the property in this hay was vested at that time? By the note of the contract delivered to the plaintiff, the defendant agreed to sell the plaintiff a stack of hay standing in Canonbury Field at the sum of £145, the same to be paid for on the 4th day of February next, and to be allowed to stand on the premises until the first day of May next. Now this was a contract for an immediate, not a prospective sale. Then the question is, in whom did the property vest by virtue of this contract? The right of property and the right of possession are distinct from each other; the right of possession may be in one person, the right of property in another. A vendor may have a qualified right to retain the goods unless payment is duly made, and yet the property in these goods may be in the vendee.

The fact in this case, that the hay was not to be paid for until a future period, and that it was not to be cut until it was paid for, makes no difference, provided it was the intention of the parties that the vendee should, by the contract, immediately acquire a right of property in the goods, and the vendor a right of property in the price. The rule of law is, that where there is an immediate sale, and nothing remains to be done by the vendor as between him and the vendee, the property in the thing sold vests in the vendee, and then all the consequences resulting from the vesting of the property follow, one of which is, that if it be destroyed, the loss falls upon the vendee. The note of the buyer imports also an immediate, perfect, absolute agreement of sale. It seems to me that the true construction of the contract is, that the parties intended an immediate sale, and if that be so, the property vested in the vendee, and the loss must fall upon him. The rule for entering a nonsuit, must therefore be made absolute. Rule absolute.6

6 Concurring opinions were delivered by Holroyd and Littledale, JJ. The rule is sometimes so stated as to convey the impression that the intention of the parties is irrelevant. See Wing v. Clark, 24 Me. 366 (1844); Cleveland v. Williams, 29 Tex. 204, 94 Am. Dec. 274 (1867). Fundamentally, however, the question is one of indicated intention, and the rule is merely a guide for ascertaining such intention. "When the parties are agreed as to the goods on which the agreement is to attach, the presumption is that the parties intend the right of property to be transferred at once, unless there be something to indicate a contrary intention. An agreement, therefore, concerning the sale of specific or ascertained goods, is prima facie a bargain and sale of those goods." Blackburn, Contract of Sale (2d Ed.) 171. See Sales Act, §§ 18, 19, rule 1; Sale of Goods Act, §§ 17, 18, rule 1.

SECTION 2.-CONTRACT TO SELL SPECIFIC GOODS TO WHICH SOMETHING REMAINS TO BE DONE

RUGG v. MINETT.

(Court of King's Bench, 1809. 11 East, 210.)

In an action for money had and received by the defendants to the use of the plaintiffs, a verdict was found for the plaintiffs for £1415, subject to the opinion of the Court upon the following case.

On the 28th of April, 1808, the defendants, as prize agents to the commissioners for the care and disposal of Danish property, put up to public sale by auction, at Dover, the cargo of a Danish ship in lots, and the lots No. 28 to 54 inclusive consisted of turpentine in casks. The quantity contained in each lot being marked on the catalogue thus-10 cwt. 3 qrs. 26 lbs., the mode of bidding was this: Each lot (except the two last, which were sold at uncertain quantities) was to be taken at the weight at which it was marked, and the bidding was to be at so much per hundred weight on that quantity. The plaintiffs employed one Acres, the warehouseman of the defendants, to bid for them, and all the lots of turpentine, (with the exception of 3 lots, which were sold to other bidders,) were knocked down to Acres so acting for the plaintiffs. No conditions of sale were distributed prior to the sale; but the auctioneer, before the bidding commenced, read aloud the following conditions: 1st, the highest bidder to be the buyer; but if any dispute should arise, the lot to be put up again. 2d, £25 per cent. is to be paid to the auctioneer as a deposit immediately after the sale, and the remainder in 30 days. The remainder of the purchase-money is to be paid on the goods being delivered. Should the goods remain after the limited time, the warehouse rent from that time to be paid at the rate of 2s. per ton per month, by the purchaser. 3d, the goods to be taken at the neat weight printed in the catalogue: 4th, the goods to be taken away in 12 months, or resold to pay the warehouse rent. Upon failure of complying with these conditions, the deposit-money is to be forfeited, and the commissioners to be at liberty to resell any lots belonging to defaulters, by whom all charges attending the same shall be made good. 1s. per lot under £10, 1s. 6d. from £10 to £25, and 2s. above £25 lot-money to be paid by the buyer to the auctioneer. Tare allowed for turpentine 1s. 5d. Upon the turpentine being put up to sale, the auctioneer, by the direction of one of the defendants present, announced to the bidders that the casks of turpentine were to be filled up before they were delivered to the purchasers; and that in order to effect this, the two last lots would be sold at uncertain quantities, and the preceding lots

would be filled from them. The whole of the turpentine, with the exception of the 3 lots Before mentioned, were sold to the plaintiffs; and they also were the purchasers of the two last lots, from which all the lots without exception were to be filled up: and those two last lots were accordingly marked by the auctioneer in his catalogue with the words "more or less." Immediately after the sale £200 was paid by the plaintiffs to the auctioneer, as their deposit; and on the 9th of May, 1808, the plaintiffs paid to the defendants £1715 upon account of the turpentine, and the duties payable thereon. The turpentine remained in the warehouses of the defendants as before the sale, but was entered at the custom-house at Dover, in the name of the plaintiffs, on the morning of the 10th of May, 1808, before the fire, by Acres who paid on behalf of the plaintiffs £450 as a deposit for the duties.

On the same morning, the cooper, who had been employed by the defendants to make up all the casks previous to the sale of the 28th of April, was sent for by Acres, who was warehouseman to the defendants, and who acted as agent for the plaintiffs, to fill up the casks of turpentine, and he had filled all of them except 8 or 10; leaving them with the bungs out to enable the custom-house officer, who was expected every minute, to take his gauge in order to ascertain the duties. The two last lots, which were sold at uncertain quantities, and marked "more or less," contained more turpentine than was sufficient to fill up all those bought by the plaintiffs, and also those bought by the buyers of the three lots. In filling the casks sold to the plaintiffs one of the two last lots was used, and instead of the other of the two last lots, a preceding cask in point of number, which had been found to be an ullage cask, was substituted by the cooper, and from one of the two last lots the lots sold to the other buyers had been previously filled up. All the lots sold to the other buyers had been taken away before the cooper came on the 10th; and while the cooper was employed in filling up the plaintiffs' lots, and placing them ready, with the bungs of the casks out for the custom-house officer to gauge, but before he had filled up all the casks, or bunged any of them, a fire took place in the defendants' warehouse, which consumed the whole of the turpentine knocked down to the plaintiffs; the casks not having been weighed again by the plaintiffs, or gauged by the custom-house officer. While the money paid by the plaintiffs to the defendants on account of the turpentine remained in their hands, they received notice from the plaintiffs not to pay it over; and the present verdict is composed of that sum, deducting the £450 paid on account of the duty, which has been restored to the plaintiffs by the commissioners of customs.

The question for the opinion of the Court was, Whether the plaintiffs were entitled to recover back the money so paid to the defendants? If they were, the verdict was to stand: if not, a nonsuit was to be entered.

LORD ELLENBOROUGH, C. J. The Court have already intimated their opinion, as to those casks in the first lots which were filled up, and on which nothing remained to be done on the part of the sellers, but only the casks were left to remain for 30 days at the option of the purchasers in the warehouse at the charge of the sellers: the payment of the warehouse rent, however, is not material in this case; and when the casks were filled up, every thing was done which remained to be done by the sellers. It was necessary, however, that they should be gauged before they were removed, and the bungs were left out for the purpose of the gauger's doing his office, which it was the buyer's business to have performed; and therefore, according to the case of Hanson v. Meyer, and the other cases, every thing having been done by the sellers, which lay upon them to perform, in order to put the goods in a deliverable state in the place from whence they were to be taken by the buyers, the goods remained there at the risk of the latter. But with respect to the other ten casks, as the filling them up according to the contract remained to be done by the sellers, the property did not pass to the buyers, and therefore they are not bound to pay for them.7

Upon this, it was agreed that the proportion to be allowed to the plaintiffs on the ten casks should be settled out of court; and that the verdict should be entered accordingly.

7 Concurring opinions were delivered by Le Blanc and Bayley, JJ. Typical cases under the Sales Act are Automatic Time Table Adv. Co. v. Automatic Time Table Co., 208 Mass. 252, 94 N. E. 462 (1911), machines to be completed, and J. B. Bradford Piano Co. v. Hacker, 162 Wis. 335, 156 N. W. 140 (1916), piano to be refinished.

Should the property be presumed to pass before the buyer has notice of the completion by the seller of any act required to be done by him for the purpose of putting the goods into a deliverable state? Compare Sale of Goods Act, § 18, rule 2, with Sales Act, § 19, rule 2, and with the cases in section 6, post p. 80.