
    
      C. Sahlman v. O. Mills & Co.
    
    Trover for 625 bags of Corn; the bags were admitted to contain 21-3 bushels each. The Corn was a portion of a certain quantity which had been purchased by defendants, to be delivered to them, at the Rail Road depot in Charleston. Plaintiff, by virtue of the following delivery order Rom them, claimed to be the purchaser of the 625 bags. “Mr. John King, junr. Agent Rail Road Company. Sir: Please deliver to C. Sahlman, six hundred and twenty-five bags of Corn, consigned to us, and oblige O. Mills & Co.
    P. S. — "We are not certain that all the Corn has arrived at the depot, but when it comes, let Mr. S. have it. January 25,1847.”
    
      
      Held that the order sufficiently identified the Corn, and transferred to plaintiff the right of property therein, and that constructive possession which enabled him to maintain this action for its subsequent conversion by defendants.
    Whether a contract for the sale of goods, be complete and binding, without any thing material remaining to be done before delivery, is to be judged of by the intention of the parties, as indicated by the proof.
    If actual or constructive delivery of the goods be made, any fact as to the particulars of the contract of sale, or even the whole contract may be proved by parol. So, under the statute of frauds, if any portion of the goods be delivered as a part of the whole lot purchased, the same rule will apply.
    
      Before the Recorder, in the City Court of Charleston, February Term, 1848.
    This was an action of trover for six hundred and twenty-five bags of corn. The testimony was as follows:
    
      H. Cook, sworn. — Said he was employed at the Rail Road; witness informed plaintiff that the corn from Col. Hampton’s place had come. This was on Sunday; don’t know how many bags ; this was twelve or thirteen months ago; plaintiff had begged witness to inform him when the corn arrived.
    
      L. F. Behling, sworn. — Said the corn came on Sunday, went with the plaintiff to demand the corn ; the bags were marked in Mills’s name; it came consigned to Mr. Adger, and was carried away by Mills’s drays. This corn came from Hampton’s; witness went with plaintiff about the corn, applied to Beach for it; Beach said he could not have it.— Mills came in and said, you cannot get the corn: plaintiff deposited the money in the S. W. R. R. Bank, and brought a check. Mills said he had no objection on account of the check ; witness, however, went and got the' money in gold and silver, the exact amount of the price of the corn. Plaintiff went with the money, and offered it to Stocking ; Mills said there is no use for all this. I consider this a legal tender. It was alleged by plaintiff, that defendants had sold him 625 bags of corn, containing bushels each, at 78 cts. a bushel, amounting in the whole to $1,218. 75. This was not denied. Mr. Mills was present at this time. Beach said he had sold the corn, if it suited; plaintiff said it did suit. Nothing was said at this time, about a sample; the corn was hauled by Mr. Mills, after the tender of the price; witness thinks the bags were marked in Mills’s name; com had taken a rise in the interim. This corn was very superior; at the time of the tender of price, com was worth about $1 a bushel.
    
      Cross-examined. — Only knew this corn came from Hampton’s, from the clerks in the Rail Road office. It arrived about the 8th or 10th of February; saw the corn at the Rail Road before the tender. Mr. D. Amy was present at the tender — Mr. Mills, Mr. Beach, and Mr. Stocking; there may have been others ; nothing was said about a sample; no reason was given by Mills or Beach, for not giving the corn; good com was worth, at this time, $ 1 a bushel, by the quantity: witness sold horse com at 88 and 90 cents, about this time.
    
      James R. Pringle, sworn. — Is one of the house of James Adger & Co. In January, 1847, he made a sale to Mills & Co. of 3,000 bushels of com at Hampton’s plantation, at 68 cents ; Mills & Co. were to haul it from the Rail Road. Mills sent his bags to the plantation ; the corn was put into them. Some time afterwards com rose; as each parcel was delivered, the com was charged to Mills & Co. On the 8th of Feb. 500 bushels; on the 20th February, 1,065; 16th of March, 1,435 bushels; making in all 3,000. Before it was all delivered, corn rose in the market. Adger &. Co. were to pay the freight on the Rail Road; it was to be delivered to Mills at the Rail Road. Price current of 13th February, quotes North Carolina and western com, from 93 to 103 cents per bushel. This is the price for the week. Witness and Mills had no written contract. A delivery order is considered, among merchants, as á delivery of goods sold; this is according to the custom of merchants. [The delivery order spoken of,-was here introduced, and was-in the following words.]
    
      “ Mr. John King, jr. Agent Rail Roa'd Company. Sir: — . Please deliver to C. Sahlman six hundred and twenty-five bags of corn, consigued to us, and oblige
    O. Mills & Co.
    P. S. — We are not certain that all the com has arrived at the depot, but when it comes, let Mr. S. have it.
    January 25, 1847.”
    
      Witness resumed. — In case of loss by fire, after the order, loss would fall on the purchaser. Hampton’s com is a superior one, is better than the ordinary Georgia or western corn ; some of the best brands in North Carolina, are better.
    
      Cross-examined. — Does not know how much the bags held, it was measured at Hampton’s place. Mills was to have the privilege of measuring here, trying some of the bags. Witness, in buying a quantity of corn, would not buy without a sample ; witness sold this com by sample, shewed it to Mills. This is the first time witness has sold corn for Hampton. Mills made no objection to the com.
    
      Mr. Stocking, sworn. — Is book-keeper to the defendants; did not hear the sale; the entry in the defendants’s books was made by Beach. [Here the books of defendants were produced, and the entry was in the following form :]
    At Rail Road.
    C. Sahlman, (S. T.) Null.
    Bush. Corn, (S. T.)
    
      Witness said the price was put down in a cipher, meaning 78 cents. The word “ null” is written in the margin of the en-t try; it is usual to buy and sell by sample ; date of the entry is the 25th of January ; the first arrival of corn was on the 8th of February.
    
      In reply. — The word “ null” was not written at the time of the entry, but some time afterwards ; thinks, before the corn arrived ; Beach made the entry; the word “ null” is in his hand writing. This is made in the defeudants’s book of original entries. Here the plaintiff rested his case. The defendants’ counsel moved for a non-suit, upon the same grounds substantially, as are now taken in his notice, (annexed hereto.) In the exercise of my best discretion, although having very decided impressions upon the points of law involved, I thought it would be more conducive to the ends of justice, to submit the case, upon the evidence, to the jury, with proper instructions to them upon the law, and refused the motion.
    The defendants then introduced the following testimony:
    
      Robert C. Brown, sworn. — Is clerk to the defendants ; was present on the 25th of January; plaintiff brought a sample of com to the defendants’s store, and said it was defendants’s corn at the Rail Road depot. On this representation, the defendants sold. The first arrival of the Hampton corn, bought by defendants, was two hundred bags on the 8th of February. At the time of the sale, defendants had no com at the Rail Road ; 426 bags arrived on the 20th of February, and 574 bags on the 15th of March, according to the entries.— This corn came from Hampton’s. On the 27th of January, defendants sold prime corn to Adger, at 75 cents, as good as Hampton’s; don’t know when it was first discovered by defendants, that they had no corn at the Rail Road.
    
      Cross-examined. — Corn rose after the sale; the sample exhibited by plaintiff, was not inferior to Hampton’s corn ; witness thinks the sample could not have been Hampton’s corn ; there is North Carolina corn like Hampton’s. Plaintiff said that defendants’s com was at the Rail Road ; witness did not see the sample ; can’t say whether the sample was or was not Hampton’s corn.
    
      In reply. — Thinks corn had declined between the 25th and 27th of January; it took a rise early in February, after some steamers had arrived. The sale spoken of by witness to Adger was afloat, and North Carolina com. Plaintiff was to take his corn at the Rail Road.
    
      George Kinloch, sworn. — Witness deals in corn ; witness purchases corn by sample — if the bulk does not correspond with sample, witness does not consider himself bound to take it.
    
      Mr. Stocking, recalled. — Again referred to the entry of the sale in defendants’s book, which was exhibited to the Court and jury. He said it was not unusual to enter “ null” to entries, as in this case.
    Here the defendants closed their testimony.
    
      In reply. — The plaintiff introduced the following evidence.
    
      D. W. Miscally, sworn. — Witness is employed at the Rail Road. Plaintiff presented an order for corn; cannot say that the one now produced is the one presented to him. Plaintiff, previous to the arrival of the corn, made frequent enquiries. Plaintiff, on the 8th of February, had a sample of Hampton’s corn, which he exhibited, and said he was satisfied with it. On the 24th of January, there arrived at the Rail Road, 157 bags of Hampton’s corn, to James Adger, marked P. 315 bushels. On the 7th of February 200 bags, containing 500 bushels of Hampton’s corn, arrived at the Rail Road to James Adger. Mills got Hampton’s corn on the 8th of February.
    
      Cross-examined. — Plaintiff was and is frequently at the Rail Road — he lives near by. The order which plaintiff had was not left, because the com had not arrived. Witness saw an order some days before the 7th of February, presented by Sahlman, for Hampton’s corn. Here the testimony closed, and the case was fully argued by the respective counsel.
    In his charge to the jury, his Honor said the first question that presented itself to his mind, and appeared to call for instruction upon the law, applicable to the case, was, whether or not the alleged contract of sale tvas rendered void by any misrepresentation on the part of the plaintiff, or mistake (on the part of the defendants) of the facts upon which the contract was based. A misrepresntation, in the contract of sale, was alleged to have been made in the statement by the plaintiff, that the defendants’s corn had arrived, and that the sample which he exhibited to them was a portion of, or true sample of the same, when, in fact, it was contended by the defendants, that the defendants’s com had not arrived, and consequently that the sample exhibited by the plaintiff, was not and could not be a portion of, or a true sample of the corn of the defendants.
    In the absence of any fraud on the part of the plaintiff, in the statement which he made to the defendants, he charged the jury that assuming the supposed mis-statement and mistake to be satisfactorily established by the evidence, (of which they were the judges, and were first to determine upon the testimony,) the next step was to consider and decide whether the supposed misrepresentation and mistake, or either, were substantial and material, or unimportant and immaterial. If the former, the contract might be avoided — if the latter, it would not be. As a test, by which to determine the materiality of the supposed mistake or misrepresentation, he charged the jury that if the fact, supposed to be misrepresented or mistaken, was of such a nature as to induce the conclusion that either the party would not have sold at all, or would not have sold at the stipulated price or terms, except upon the assumption of the truth of the supposed fact, and it should turn out not to be true, the contract would not be binding, otherwise it might generally be regarded as immaterial.
    The next question was, as to the validity of the contract of sale upon other grounds, and especially in relation to the 17th section of the statute of frauds. First, was there a sufficient memorandum in writing of the contract of sale, in this case, to take it out of the statute. He charged the jury that the entry in the defendants’s books was entirely insufficient. A memorandum, to satisfy the requisitions of the statute, must furnish all the necessary terms of the agreement ; a designation of the thing sold, the price to be paid; presenting at least the evidence of a contract definite upon its face, and capable of a certain and specific execution or performance.
    In this entry, neither the quantity of corn sold, nor the price to be paid was mentioned; for, in regard to the latter requisite, the cipher (S. T.) which it was said, was intended to designate the price, to those who were supposed to understand its secret meaning, was not of the least effect. He charged the jury that the order of delivery was equally insufficient to take the case out of the statute; whether considered by itself, or in connection with the entry in the defendants’s books. The objection to the entry, in the defendants’s books, in regard to the thing sold, was that it was put down as-bushels, leaving the quantity indeterminate and uncertain. The order, as expressed to the jury, was obnoxious to the same objection in a different-way. For that, though it mentioned the number 625, spoke of 625 bags of com. Now was this not equally uncertain and indeterminate as to the quantity of the thing sold 1 He was not aware of any usage in trade, nor was there any evidence adduced to shew that a bag of corn, necessarily or ex vi termini, must consist of any certain and determined quantity. A bag of corn may consist of one bushel, or two or three, or any other quantity. It differs in this respect from a bale of cotton or barrel of rice, these being sold by weight; and corn by measure. There was evidence to shew, from the admissions of the defendants, that the 625 bags of corn, sold by the defendants to the plaintiff, were to contain 2J bushels each'; but this was by parol, and not in the writing required by the statute, and if permissible, opened a door for the very mischief which the statute was intended to prevent.
    The next question which seemd to occur, and which was submitted to the jury was, whether there was or not an actual delivery, by the defendants or their agents to the plaintiff, of the corn purchased by the plaintiff, from the defendants. If so, it was held that the plaintiff was entitled to recover for any subsequent conversion by the defendants. This, how-r ever, was not pretended, for if such had been the case, that is, if the corn had actually been delivered to the plaintiff, there was no reason to suppose that the present or any such action would have been brought, or have been necessary. — ■ But it was urged that there was a constructive delivery of the corn by operation of law; that the order of defendants in favor of plaintiff, directed to the Rail Road Agent, transferred the possession of the 625 bags of corn to him upon their arrival, and that the present action of trover could be well sustained against the defendants for subsequently taking and carrying the' corn away, and converting it to their own use. But upon this part of the case, the jury were instructed that the obstacles to the plaintiff’s recovery, interposed by the law, were in no way diminished. Giving to the order of delivery, in this case, all the force assumed for such orders in the testimony of Mr. Pringle, the custom of merchants, or the decided cases, it appeared that such orders could only have the effect claimed for them, where the goods sold are clearly designated or specifically pointed out, and capable of actual delivery, so that the purchaser may (if not prevented) lay his hands upon the very articles sold, and say these are mine. When the order in this case was given, it was clear the corn, belonging to the defendants, had not arrived; it was deliverable at the Rail Road. The order was for 625 bags of corn; for an indeterminate and uncertain quantity. Suppose the defendants’s corn had come in four bushel bags, would the plaintiff have been entitled to demand and receive them ? If (as was the fact) the corn came in parcels, at different times, amounting in the whole to 3000 bushels, could each parcel, say of 200 or 300 bags, or any other number less than the amount of the order, be considered as specifically transferred from time to time to the plaintiff? Suppose again the whole 3000 bushels of corn, bought by the defendants from Hampton, through Adger & Co. in 1200 bags, (allowing as was the fact,) bushels to a bag, had come at one time, would the plaintiff, under his order from the defendants, for 625 bags, have had a specific property and right of possession to any 625 bags ; and if so, to which, by force of a constructive and not actual delivery ?
    In addition to all this, the jury were reminded that under the contract between Mills & Adger &. Co. the defendants had the right of measuring the corn, on its arrival at the Rail Road, if they saw fit to exercise it, before the delivery was to be considered as complete between them and the defendants, under their contract. Upon-the whole, leaving all questions of fact to the jury, he charged them that if without violating the principles of law, laid, down for their guidance, they could consistently find a verdict for the plaintiff, they ought to give him, byway of damages, the difference of the price at which he had. purchased the com, and the highest price the market, at the time of the conversion of it by the defendants. The jury found a verdict for $312 40.
    The defendants appealed from the verdict, and renewed their motion for a non-suit, on the following grounds:
    1. That the alleged sale was uncertain, inchoate and incomplete in itself, and was moreover void, for want of a sufficient memorandum in writing, under the 17th section of the statute of frauds.
    2. That even if the contract of sale was complete and binding, there was no proof of a delivery to vest the plaintiff’s title, and no possession to enable him to maintain this action.
    And they also moved for a new trial, on the same grounds, and on the further grounds :
    3. That the sale was made under the belief, created by the plaintiff’s representation, that the corn had arrived, which was not the fact; and as soon as the truth was known, the defendants annulled the sale, nor was any claim set up by the plaintiff, until a fortnight afterwards ; and after the corn had arrived, and been sold by the defendants to another person. Wherefore, the sale having been made under a mistake, and that mistake created by the misrepresentation of the plaintiff, it was not binding upon the defendants.
    4. That for all the reasons above stated, the verdict was plainly and palpably against law and the evidence, and could not be sustained except by investing the jury with legislative authority pro hac vico.
    
    
      Bailey & Brewster, defendants’s attorney.
    argument.
    Brewster, for the motion,
    cited in support of the 1st ground, Story on Con. 2nd ed. sec. 800 — 2 Saund. PI. and Ev. 41; 2nd ground, 2 Saund. PL and Ev. 873 ; 3rd ground, Story on Con. sec. 419 and 420.
    Simons, contra,
    said the transfer order carried the title of the goods — 2 Camp. 243 ; 5 Johns. 335 ; Story on Con. 312; 3 Caines’s, 182; 7 T. R. 278; 4 Camp. 251; 2 Hill, 587; 2 Esp. 598, — and that the delivery order satisfied the statute of frauds. It was symbolically, a delivery of the thing itself.
    
      Petigru with Brewster,
    said that no recovery could be had in the suit, for possession was necessary in trover, and there was none in this case. Nor was there any memorandum in writing, of the contract. — 17th sec. Stat. of Frauds.
   WitheRs, J.

delivered the opinion of the Court.

If there was no delivery of the corn in question, to the plaintiff, the ease was within the statute of frauds; and we might not be able to find enough in the plaintiff’s proof to fulfil the demands of that statute. If the contract was exe-cutory, the plaintiff must fail, for he has brought trover, and such a contract is not the basis of such an action.

The true enquiry, therefore, is whether the order received by the plaintiff, from defendants, and by him, presented to the Rail Road Agent, was an execution of the contract — that is to say, did it operate to vest in Sahlman the right of property in the corn, and a constructive possession of it ?

It was contended at the bar, that 0. Mills & Co. had not possession themselves, and consequently they could not transfer it to another. But the testimony (by Mr. Pringle) is that the sale of 3000 bushels of corn, was made by Adger & Co. to defendants, at Hampton’s plantation.” Mills sent his bags to that plantation, and the corn was put into them. There is no room to question that defendants were complete and absolute owners of the corn, at Hampton’s plantation, and could deal, concerning it, as effectually as if the commodity had been in their warehouse in Charleston. Though Adger & Co. were to pay the freight, (yet, as the testimony is,) Mills & Co. were to receive the corn at the Rail Road, and have it from that place.

Conceding that the agent of the vendor, holding the goods, should recognize the order, which has not been discussed in this cause, it is conceived that he did so in fact; for the proof on that subject, shews that though it was not left with the Agent of the Rail Road when presented to him, that was omitted only because the com had not then arrived ; and we are informed that when it did arrive, information was given of the fact to the plaintiff, by one connected with the Rail Road depot; and it may, therefore, be well concluded that the warehouse-man fully recognized whatever right the paper presented conveyed to the plaintiff, and regarded the custody of the goods, when they should arrive, to be for and on account of the plaintiff in this case.

The real point of objection to the force and effect of the paper presented by the plaintiff, to the Rail Road Agent, as a delivery order, within the understanding of merchants, must be reduced to this — that the merchandize, intended to pass under it, was not identified ; or that something remained still to be done, in relation to the corn, necessary to designate precisely that which should be the plaintiff’s.

Assuredly the intention of the parties, if it can be collected from what they have said or done, as to this matter, ought to have much to do in determining our conclusion. It is not said in the order, nor otherwise proved, that any single act was to be done, tending to designate or identify the corn. It is suggested, however, that Mills & Co. by their contract with Adger & Co. reserved the right to measure the corn at the Rail Road depot. But it is well enough to answer that this may not, on that account, have entered into the contract or intentions of the parties to this action. It appears in the case, as reported to us, that Mills & Co. were to receive a specific quantity of corn (3000 bushels,) at Hampton’s plantation, and Mills sent his own bags to receive it. It would seem that the capacity of each bag, purchased by plaintiff, was known, for in a conversation between plaintiff and.Mills, the former alleged that he had bought “ 625 bags of corn, containing 2\ bushels each, at 78 cents per bushel,” and this was not denied. Then if the number of bushels was a matter to be known at the Rail Road depot, that would seem to be no matter of doubt. However, the subject of sale was a specific number of bags of corn, (so specified in the order,) bags consigned to Mills &. Co. at the Rail Road depot, arrived or to arrive — if not there, then when they did come, or such of them as would complete the number, were to be delivered to the plaintiff. It is admitted that to make the order operative to sustain this action of trover, the plaintiff should be able, by virtue of its terms, to lay his hand on the specific bags purchased. What obstacle would he have found to doing this, if the defendants had not interfered? He would find bags of corn consigned to them ; and we hear of none other consigned to them, but those brought from Hampton’s plantation — the number was settled. But the defendants had other bags of corn, not distinguishable among themselves, at the same place, and from the same place. Still there is no difficulty in this, for, by the terms of the order, upon a plain interpretation, if none were there at its date, the first 625 that came were to be delivered — if some were there, but a less number, they, with the requisite additional number to arrive and when received, were to be the identical 625 bags, that were the subject of the contract. The element of the case, therefore, which includes the identity, and separate identity, of the thing sold, seems well enough developed by the plaintiff’s testimony.

2 Strobhart. 2 Esp. Rep. 598. 20 Pick. Rep. 280. 13 Pick. 182.

It is not proposed to collect authorities to sustain the observations hereinbefore made ; for as to the main question of enquiry here, (whether the order was such as to transfer the right of property in the corn, and the constructive possession to the plaintiff,) has recently undergone the consideration of this Court, and has been elaborately discussed in the case of Fraser & Co. v. Hilliard et al. Very good illustrations of what we hold in this case may be found in Searle v. Reeves, and in Riddle v. Varnum, citing the case of Macombee v. Parker. The two latter cases are a commentary upon the doctrine, that although a contract for the saLe of goods be complete and binding in other respects, the property in them remains in the vendor, and at his risk, if any material acts rema¡n t0 be done before the delivery — unless the evidence constrain the belief that the parties.did not contemplate any thing else to >be done before delivery : and we are admonished by those cases to look, as in all other actions on contract, to the intention of the parties, as indicated by the proof. In the one case, though the plank and timber were in the hands of a bailee, when the contract was made, and had to be measured to ascertain the means of fixing the amount to be paid; and in the other, though the bricks were to be counted for the same purpose, yet the delivery was affirmed to have been made in each case. While the general principle is sensible, and ought to be maintained as wholesome law, it would be expedient, for the very purpose of maintaining it, that we should not push its application to a fanciful extent; and'in so doing lose sight of the reasonable indicia of the intention of the parties to regard the delivery complete, or not.

If, then, the delivery of the corn shall be considered as having followed the order, the question is ended; for'there is no room to debate whether the defendants had the right of stoppage in transitu. The delivery excludes that enquiry. Nor is there any thing in the suggestion, that we ascertain some fact or other as to the particulars of the contract, by parol, testimony. If actual delivery had been made, (and constructive is equivalent,) the whole contract might be proved by parol. So, under the statute of frauds, if a single bag had been delivered as a part of the article purchased, • the same would have followed.

Inasmuch as the defendants received a more favorable charge on the law than they had a right to require, and the plaintiff, notwithstanding, has obtained a verdict, he is of course entitled to retain it; and the motion in behalf of defendants is, therefore, dismissed.

O’Neall, J. — Evans, J. — Wardlaw, J. — and Frost, J. concurred.

Richardson, J. did not hear the argument in this case.

Motion refused.  