1. If it be stipulated in a contract that a duty arising out of
it shall be performed by a particular officer, the performance of
such duty by deputies, under his direction, will not satisfy the
terms of the contract nor bind the parties except in cases where it
was known that such officer was accustomed to act by deputies.
2. Where parties contract for the sale of a quantity of logs, to
be delivered at a future time, and the vendee binds himself to take
all merchantable logs at a certain price, the vendor does not, by
his assent to such contract, make warranty that all the logs he
delivers shall be merchantable, but only leaves it optional with
the vendee to reject such as are not.
3. Logs floating in the water are in the constructive possession
of the owner, and when sold a symbolical delivery is sufficient to
pass the title.
4. When the terms of sale are agreed on and the bargain is
struck, and everything the seller has to do with the goods is
complete, the contract of sale becomes absolute as between the
parties without actual payment or delivery; the buyer becomes the
owner and takes the risk of all subsequent accidents to the
goods.
4. He is entitled to the goods on payment or tender of the
price, and not otherwise, when nothing is said at the sale as to
the time of delivery, or the time of payment.
5. But if the goods are sold upon credit, and nothing is agreed
upon as to the time of their delivery, the vendee is immediately
entitled to the possession and the right of property vests at once
in him.
This was assumpsit brought in March, 1858, in the Circuit Court
of the United States for the District of Michigan, by F. B. Leonard
and C.P. Ives, citizens of the state of New York, against C. Davis,
a citizen of Michigan, A. E. Loomis and J. C. Dore, citizens of
Illinois, and T. Newell, a citizen of Connecticut, partners in the
lumber business at Muskegon, in the State of Michigan, under the
firm name of C. Davis & Co. The suit was brought on a written
contract for certain saw logs. The
Page 66 U. S. 477
defendants pleaded the general issue, with notice of the
set-off, averring that but a part of the logs ever came to their
possession, and of this part but a few were merchantable, the
balance of them being worthless, and claiming damages for the
inferior quality of the logs. Verdict and judgment for defendants,
with costs. Motion for new trial denied. A writ of error to the
Supreme Court of the United States was sued out by plaintiff.
The facts in controversy are stated very fully in the opinion of
MR. JUSTICE CLIFFORD.
MR. JUSTICE CLIFFORD.
Some brief reference to the pleadings in the cause will be
necessary in order that the precise nature of the controversy may
be clearly understood. It was an action of assumpsit brought by the
present plaintiffs, and the declaration contained two special
counts, framed upon a certain written agreement signed by the
parties.
According to the allegations of the first count, the defendants,
on the 6th day of November, 1856, brought of the plaintiffs a
certain described parcel or lot of pine saw logs, situated in and
about the Muskegon River and Lake in the County of Ottowa and State
of Michigan, and the claim as there made was for the entire amount
agreed to be paid as the consideration for the purchase and sale of
the lumber.
Referring to the second count, it will be seen that it was in
all respects substantially the same as the first, except that the
pleader assumed throughout that the agreement between the parties
was executory, and consequently alleged that the plaintiffs agreed
to sell and that the defendants agreed to purchase the same parcel
or lot of pine saw logs as that described in the first count,
averring readiness to perform on the part of the plaintiffs, and
default on the part of the defendants.
Page 66 U. S. 478
Process was duly served upon the defendants, and on the 30th day
of March, 1858, they appeared and pleaded the general issue, giving
notice in writing at the same time of certain special matters to be
given in evidence under that plea.
Among other things, they alleged in the notice that not more
than seven hundred thousand feet of the saw logs agreed to be
furnished by the plaintiffs ever came to their hands and that not
more than one-fourth part of the quantity so received was
merchantable, and that, through that default and wrong of the
plaintiffs, they, the defendants, suffered damages to the amount of
five thousand dollars, for which amount they claimed to recoup the
damages demanded by the plaintiffs. They also averred that the
plaintiffs were indebted to them in the sum of three thousand
dollars for money lent and money paid and advanced; and they also
gave notice that they would prove such indebtedness at the trial by
way of set-off to the damages claimed by the plaintiffs, as more
fully set forth in the transcript. Such was the substance of the
pleadings on which the parties went to trial.
Before proceeding to state the evidence, and the rulings and
instructions of the court, it becomes necessary to advert to the
situation of the saw logs, and the surrounding circumstances at the
time the agreement was made. Both parties agree that the lot or
parcel of logs in controversy had been cut in the forest during the
winter preceding the date of the contract by one A. B. Furnam, and
had been by him transported to the river and upper waters of the
lake, and driven down the same to the association boom, so-called,
where the larger portion of the logs were situated at the time the
agreement was executed. Divers persons own timber lands bordering
on the upper waters of that lake, and during the winter season of
the year cut saw logs, either for sale or to be transported over
those waters to their mills to be manufactured into boards. Such
logs are usually branded with the initials of the owner's name, or
some other mark by which the property of one owner may be
distinguished from that of another, and all the logs thus collected
during the winter season, although belonging to different
individuals, are floated down the river during the spring
Page 66 U. S. 479
freshet in one "drive," so called, and secured in the
association boom, which is in the lake and is large enough to
contain the whole quantity and afford ample space to enable the
different owners to select their own marks and arrange the logs in
rafts to be transported to their private booms.
Claim was made by the plaintiffs for the entire amount of the
consideration agreed to be paid for the logs specified in the
contract. To maintain the issue on their part, the plaintiffs
introduced the contract described in the declaration, and offered
evidence tending to prove the situation and quantity of the logs,
and that the defendants, or one them, had admitted that they had
neglected to measure and scale the logs according to the agreement.
One of the defendant was the treasurer of the association or
incorporation owning the boom, where the logs, or the principal
portion of them, lay at the time the contract was made.
Prior to the date of the contract, the same defendant had
presented a draft to the plaintiffs for the price or charge of
driving down the river and into the boom of the association a
certain quantity of saw logs, equal in board measure to fourteen
hundred and forty-four thousand feet. Said logs belonged to the
plaintiffs, and they offered the draft, with the receipt of the
defendant thereon, to show that the defendants, or some of them,
and knowledge of the quantity and locality of the logs at the date
of the agreement.
To the admission of that evidence the defendants objected, and
the court excluded it, and to that ruling the plaintiffs excepted.
Various other exceptions also were taken by the plaintiffs to the
rulings of the court in the course of the trial, to which more
particular reference will presently be made.
Five prayers for instruction were presented by the plaintiffs,
but the court refused the entire series, and instructed the jury
substantially as follows:
That the contract declared on was executory, that the title to
the logs did not pass till after admeasurement, that admeasurement
was equally for the benefit of both parties, and that the boom
master was made the common agent for that purpose. That if the jury
found from the evidence that it was impracticable for the boom
master to do
Page 66 U. S. 480
the scaling alone, and it was the custom of the association for
him to have assistant, then the scaling in this case might be
lawfully done by such assistants under his orders. That it was
equally incumbent upon the plaintiffs and defendants to have the
logs scaled and measured, and that the plaintiffs could only
recover for such logs as had been scaled and come to the possession
of the defendants. That the contract imported a warranty that the
logs were merchantable, and that the defendants were entitled to a
reasonable opportunity to ascertain the quality of the logs. That
if the jury found that the quality could not be determined till
after the logs had been rafted up and taken to the defendants'
boom, and then only by sawing them up, or chopping into them, they,
the defendants, had a right to do so, and further that if the jury
found that the unmerchantable logs were entirely worthless, the
defendants were entitled to recoup their damages for such defects
without returning the logs or giving notice to the plaintiffs.
Under the instructions of the court, the jury returned their
verdict in favor of the defendants, and the plaintiffs excepted
both to the refusal of the court to instruct as requested and to
the instructions given.
Comparing the terms of the contract with the instructions given
to the jury, it is obvious that the former was misconstrued by the
court, and that injustice has been done to the plaintiffs.
Referring to the contract, it will be seen that the first
sentence thereof declares that the defendants "bought of" the
plaintiffs
"a quantity of pine saw logs, got out last winter by A. B.
Furnam, supposed to be about fourteen hundred and forty-four
thousand feet, in board measure, at the rate of four dollars and
fifty cents per thousand for those afloat in the booms and bayous
near the head of the lake, and four dollars and twenty-five cents
per thousand feet for those on the bank or in marsh near the lake
and boom."
All of the logs sold were to be counted, measured, and scaled by
the boom master, meaning the person in charge of that business at
the association boom, where the logs, or the principal portion of
them, were situated when the contract was
Page 66 U. S. 481
made, or by such other person as the parties might agree on, as
the logs were rafted up preparatory to be transported to the
private boom of the defendants.
Recurring again to the agreement, it will be seen that it bears
date on the sixth day of November, 1856, and by its terms the
defendants were to pay for all the logs rafted up that fall on the
fifteenth day of December following, and for all such as were not
rafted up until the next spring, they were to pay monthly at the
end of each month during the rafting season of the succeeding year.
But it is evident that the parties well understood, that a certain
portion of the logs included in the sale would remain back, even
after the close of the next rafting season, and they accordingly
provided that the balance, not then rafted up, should be settled
for by the defendants as soon as they could be measured and the
"scaling" completed.
By the terms of the contract, the defendants were to take all
the merchantable logs in the described lot or parcel, and inasmuch
as the time and amount of the payments would be affected by the
promptitude or negligence of the defendants in rafting up the logs,
it was expressly stipulated that they should raft up and secure as
many of the logs as they could that fall, and as many as possible
of the residue during the next spring before the annual "drive"
came down.
Beyond question, these provisions were inserted in the contract
for the benefit of the plaintiffs, and it is quite obvious that
they were necessary to the protection of the rights of the
plaintiffs, because the defendants were not required to make
payments any faster than they could raft up and secure the logs so
as to render them available for the purpose for which they were
purchased. Such of the logs as remained back after the annual
"drive" of the succeeding spring came down were to be scaled where
they lay, whether on the banks, in the booms or bayous, and were to
be paid for by the defendants at the contract price without further
delay to raft them up. Whether the logs were merchantable or not
was to be determined by the boom master, who was specially
designated in the contract to count, measure, and scale them for
the parties. He might perform that duty himself, or if he had
deputies
Page 66 U. S. 482
who usually assisted him in performing that work, and that
custom was known to these parties at the time the contract was
made, then he might properly cause the work to be done by such
deputies under his direction, and such a performance of the duty
assigned to him in the contract would be a lawful performance of
the same, and would be obligatory upon both of these parties.
All the logs, however, were to be counted, measured, and scaled
by the boom master or such other person as the parties might agree
on, and unless the boom master had regular deputies who were
accustomed to assist him in such duties, and that custom was known
to the parties at the time the contract was made, then it is clear
that the work could only be done by the person designated in the
contract, unless the parties substituted another in his place.
Merchantable logs only were bought and sold by the parties, but
it is a great mistake to regard that provision as a warranty of the
logs on the part of the plaintiffs. Unless the parties were
destitute of all experience, they must have known that in so large
a lot of logs there would be some, and perhaps many, that would not
scale as merchantable, and it was doubtless from that consideration
that the provision was inserted that the defendants should take all
of that description, and, of course, they were not bound to take
any of inferior grades. Regarded in that light, it is evident that
the provision was for the benefit of both the seller and purchaser,
as it furnished a clear and unmistakable description of what was
bought and sold; we say "bought and sold" because it is evident
from what has already been said that the title to the logs passed
to the defendants. Most of the logs were in the association boom at
the time the contract was made, and as they were floating in the
water, the law did not require an actual delivery in order to vest
the title in the defendants. While floating in the water, they were
only in the constructive possession of the owner, and under such
circumstances a symbolical delivery is all that can in general be
expected, and is amply sufficient to pass the title.
Ludwig v.
Fuller, 17 Me. 166;
Boynton v. Veazie, 24 Me. 288; 2
Kent's Com. 492;
Macomber v. Parker,
Page 66 U. S. 483
13 Pick. 175;
Hutchings v. Gilchrist, 23 Vt. 88;
Gibson v.
Stevens, 8 How. 384
When the terms of sale are agreed on and the bargain is struck
and everything the seller has to do with the goods is complete, the
contract of sale, says Chancellor Kent, becomes absolute as between
the parties, without actual payment or delivery, and the property
and the risk of accident to the goods vests in the buyer. He is
entitled to the goods on payment or tender of the price, and not
otherwise, when nothing is said at the sale as to the time of
delivery or the time of payment. But if the goods are sold upon
credit and nothing is agreed upon as to the time of delivering the
goods, the vendee is immediately entitled to the possession, and
the right of property vests at once in him. 2 Kent's Com. (9th ed.)
671;
Bradeen v. Brooks, 22 Me. 470;
Davis v.
Moore, 13 Me. 427
Nothing in fact remained to be done in this case so far as the
sale and purchase were concerned. Defendants bought and plaintiffs
sold without condition or reservation, and the measurement was
simply to ascertain the amount to be paid by the defendants.
Sellers had nothing to do but to receive the agreed price, unless
the boom master refused to act, which contingency did not happen
him in the case.
Cushman v. Holyoke, 34 Me. 292;
Riddle v. Varnum, 20 Pick. 280
It is clear, therefore, that the title in the logs passed to the
defendant at the time the contract was executed.
Cunningham v.
Ashbrook, 20 Mich. 553;
Cole v. Transp. Co., 26 Vt.
87
Having stated our views as to the construction of the contract
constituting the foundation of the suit, the errors in the
instructions given to the jury will be manifest without any
additional explanations, and we need only say, in this connection
that they are of a character to affect the merits of the
controversy, and lead necessarily to the reversal of the
judgment.
Some of the rulings at the trial, to which exceptions were also
taken by the plaintiffs, present, directly or indirectly, the same
legal questions as those involved in the instructions given to the
jury, and in respect to all such the explanations already given
will furnish a proper guide at the next trial. That remark,
however, does not apply to the first and third exceptions,
Page 66 U. S. 484
which were well taken upon other and distinct grounds. Evidence
was offered under both those exceptions, tending to show the
quantity of the logs, which was a material matter in dispute at the
time.
It cannot be doubted that the evidence offered had some tendency
to support the issue, and if so, it was the duty of the court to
receive it, and allow it to be weighed by the jury. We forbear to
remark upon the other exceptions, because the explanations already
given as to the true construction of the contract will sufficiently
demonstrate the error in the rulings.
In view of the whole case, we are of the opinion that the
rulings and instructions of the circuit court we erroneous.
The judgment is accordingly reversed, with costs, and the
cause remanded with direction to issue a new venire.