Foster v. Ropes.

plaintiff's foreman that he would take the first lot the next day, and on April 27 they were weighed in Beverly, and carted to Salem by a teamster sent by the defendant for that purpose, and were shipped for New York on April 28. No question was made at the trial that there was any unreasonable delay on the part of the defendant in taking the first lot of the fish. The plaintiff testified that he understood that the fish were at his risk till weighed and delivered to the defendant, and that he considered the fish the defendant's from the day they were sold, as he could not sell them. The fish were delivered in two lots. The plaintiff testified that he did not know that both lots passed to the defendant at the delivery of the first lot.

"It was contended by the plaintiff that the defendant in his testimony used the words 'I bought the fish on the 15th,' and it was argued to the jury that he so testified. Whether or not there was an absolute sale of the fish on that day, and whether or not the sale was consummated on that day, was in issue, and was a question submitted to the jury on the whole evidence of the transaction and conversations of that day between the parties.

The defendant wrote to the plaintiff and to George B Foster, the plaintiff's son, the following letters: "Salem, May 6, 1870. Mr. George B. Foster, Dear Sir: I regret to say that owing to the fish last had of you not being sound or strong, I cannot sell them in New York, and shall have to bring hem back. I write to say that if opportunity offers to sell the balance now with you, do not keep them for me. I will see you in a day or two. Yours ruly, Charles A. Ropes." "Salem, May 7, 1870. Mr. Josiah L. Foster, Dear Sir: I wrote your son George yesterday, that he need not lose opportunity to sell balance of the fare fish, which I had taken part of. I regret to say that my to-day's letters from New York advise me that the fish cannot be sold there; parties who had bought and got them in store notifying my brother that they must send them back aboard the vessel. What disposition shall I make of the fish? They are so strong and unmerchantable that I doubt selling them there at any price. Not hearing from you Monday, they will be shipped back to Salem at your risk ard subject to your order. Respectfully yours, Charles A Ropes. My brothers write that they cannot sell them selected."

Foster v. Ropes.

"On May 14, 1870, the plaintiff delivered to the defendant the following letter: May 14, 1870. Mr. Charles A. Ropes, Dear Sir: We shall weigh off the residue of the fare of fish of the J. L. Foster, which we sold to you a short time since, on Monday next, if a fair day; otherwise on the next fair day. This is to notify you to be present and see to the correctness of the weight at the fish-house, where they are, and were bought by you. Tho fish are there at your risk, and yours. Very truly yours, Josiah L. Foster.' And on the same day the defendant delivered to the plaintiff the following letter: Salem, May 14, 1870. Mr. Josiah L. Foster, Dear Sir: I am in receipt of yours of this date, no tifying me that balance of the fare of fish by J. L. Foster, will be weighed off on Monday, and all at my risk. Having bought sound, merchantable fish of you, and they not being so, I shall decline to receive them. I have already notified you of my intention to return those shipped by Hero, and that they are now on your risk and account. She is now on the passage, and I will notify you of her arrival. Yours respectfully, Charles A. Ropes.' "On May 17, the defendant delivered to the plaintiff the following letter: Salem, May 17, 1870. Mr. Josiah L. Foster, Dear Sir: Having notified you yesterday of the arrival of the Hero here, with the fish on board, rejected and returned from New York, and you having refused to receive them, this is to notify you that I must discharge said fish, first good day, and dispose of them for whom it concerns, on the best terms I can. Respectfully yours, Charles A. Ropes.' And on May 24 the plaintiff delivered to the defendant the following letter: May 24, 1870. Charles A. Ropes, Esq., Dear Sir: On the 15th day of April last past you purchased of me the fare of fish of the schooner J. L. Foster, at my fish-house in Beverly, consisting of 775 quintals at $6 per quintal, and took away 400 quintals of them. The other 375 quintals are now remaining in said fish-house, your property, and subject to your order and disposal. A reasonable time for your taking them away has already elapsed, and I shall charge you storage from this date; and unless you take them away as soon as may be, which you are hereby requested to do, I shall make sale of the fish at the fish-house at your expense, on

Foster v. Ropes.

your account and for your benefit. And I hereby demand payments for the said 775 quintals of fish at the aforesaid agreed rate per quintal. Very truly yours, Josiah L. Foster.'

"Other letters passed between the parties. On May 16, being Monday, the remainder of the fare of the J. L. Foster, amounting to 375 quintals, was weighed off at the fish-house where they

were.

"Upon all the evidence, the defendant contended and asked the judge to rule that there was no sale of the fish on April 15, and that the plaintiff could not recover for the fish in Beverly as for fish sold and delivered, as set forth in his declaration. The judge ruled that if anything remained to be done by the plaintiff to the fish after the agreement on April 15, before they passed into the hands of the defendant, the delivery was not complete, and the plaintiff could not recover for the fish in Beverly, unless the jury were satisfied that it was the intention and agreement of the parties that the sale should be completed on April 15, and the title then pass to the defendant. The defendant contended that there was no evidence of any such agreement, but the judge allowed the case to go to the jury upon the above instruction, to which the defendant excepts.

"The questions of whether or not the plaintiff made a warranty of the soundness of the fish, whether the defendant relied upon such warranty, and whether there was a breach of such warranty, were in issue and passed upon by the jury at the trial, upon instructions not excepted to.

"Certain specific questions were submitted to the jury, which, with the answers of the jury, were as follows: Is there a general usage known and acted upon by persons engaged in buying and selling salted codfish, if such fish are sold at the price of sound fish, and afterward prove to have been unsound at the time of sale, to allow the buyer to return them to the seller, or to make him an allowance for such unsoundness.' Answer: 'No.' Was it the intention of the parties that the sale should be complete when the bargain of sale was made, or when the fish had been thrown and weighed for delivery?' Answer: At time of sale." "

J. W. Perry, (W. C. Endicott with him,) for the defendant.

Foster v. Repes.

J. C. Perkins, for the plaintiff.

COLT, J. Under the instructions given, the jury were allowed to find that the sale of all the fish was completed, so as to pass the title to the defendant, on April 15, the day when the contract of sale was entered into. This action is to recover the price of the whole, as for goods sold and delivered.

The defendant asked the court to rule, upon all the evidence, that there was no sale at that time, and that, under a count for goods sold and delivered, the plaintiff could not recover for the fish which remained in Beverly after the 400 quintals were taken away by him. This ruling was refused, and the jury were told, in substance, that the plaintiff could not recover for the fish in Beverly, if anything remained to be done to them by the plaintiff after the agreement of April 15, unless they were satisfied that it was the intention and agreement of the parties that the sale should be complete and that the title should pass at that time. The point made by the defendant is, that the last part of this instruction was not supported by the evidence, and was calculated to prejudice his rights, even if correct as an abstract proposition, and as applicable to a different state of facts; and we are of opinion that the objection is well taken.

In the sale of personal property, the general rule of law is, that when, by the terms of the contract, the seller agrees to do anything for the purpose of putting the property into a state in which the buyer is bound to accept it, or into a condition to be delivered, the title will remain in him until he has performed the agreement in this respect. In Rugg v. Minett, 11 East, 210, where a quantity of turpentine in casks was sold in lots at so much per hundred weight, it was held that the property had passed in those lots only in which the casks had been filled up as agreed, because as to them only had everything been done by the sellers, which lay upon them, to put the goods in a deliverable state. And see also Acraman v. Morrice, 8 C. B. 449; Morse v. Sherman, 106 Mass. 430.

This general rule will not prevail, where, by the terms of the agreement, the title is to vest immediately in the buyer, notwithstanding something remains to be done to the goods by the seller

Foster v. Ropes.

after delivery. Thus in Riddle v. Varnum, 20 Pick. 280, it was held that the jury, where there was evidence of such intention, might infer a delivery to the buyer sufficient to vest the title, although something remained to be done by the seller; while the general doctrine above stated, in cases where there is no evidence of intention to complete the sale and pass the title, is fully affirmed. And in Turley v. Bates, 2 H. & C. 200, it was said that the court must look to the intention as drawn from the terms of the contract, in order to determine whether title to the property immediately passed. Young v. Matthews, L. R. 2 C. P. 127. Story on Sales, § 298 a.

In all cases, however, the intention of the parties as to the time when the title is to pass can be ascertained only from the terms of the agreement, as expressed in the language and conduct of the parties, and as applied to known usage and the subject matter. It must be manifested at the time the bargain is made. The rights of the parties under the contract cannot be affected by their undisclosed purposes, or by their understanding of its legal effect.

In the case at bar, it was not in dispute at the trial, that, by the contract of April 15, the fish was to be put on flakes and further dried by the plaintiff, and afterwards weighed by him for the purpose of ascertaining the quantity and price. This was to be done for the purpose of fitting the goods for delivery. By the general rule, therefore, the property not actually taken away by the defendant remained in the plaintiff, unless there is evidence which would justify the jury in finding that by further agreement, notwithstanding this feature of the contract, the title was to pass immediately to the defendant. We can find no evidence of such agreement in the case stated. All that was said and done on April 15 is consistent with an intention to leave the title in the plaintiff until the fish were fully cured, weighed and deliv ered, according to the general rule of law; and there is nothing to vary the application of that rule. The letters subsequently written by the defendant do not seem to us to contain anything which amounts to an admission of such an agreement; nor were the statements in the letters written to him by the plaintiff of such a character that his silence in regard to them can be construed into an implied admission.