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LA313 - Commercial Law - Cases

TARLING

v.

BAXTER

 

JAMES TARLING against BAXTER.1827. A., on the 4th of January, agreed to sell to B. a stack of hay for the sum of 145l., to be paid on the 4th of February, the same to be allowed to stand on A.'s premises until the 1st of May. B. stipulated that the hay should not be cut until it was paid for: Held, that this was a contract for an immediate and not a future sale, and that the property in the hay passed by it immediately to the vendee and that the same having been subsequently destroyed by fire, the loss fell upon him.

[S.C. 9 D. & R. 272: 5 L. J.K.B.O.S. 164. Referred to Martindale v. Smith, 1841,1 Q. B. 395]

Assumpsit to recover back 145l. 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 145l., 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 145l., 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 145l. 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 the plaintiff under the circumstances was entitled to recover the sum of 145l. or any part thereof.

Chitty for the plaintiff. The loss in this case must fall upon the defendant. There is a difference between the two contracts; the one contains a stipulation not in the other, that the hay was not to be cut until paid for. Now if that be a material part of the contract, then there was no one sufficient contract in writing to satisfy the Statute of Frauds, but assuming that there was a complete contract of sale without the stipulation, and that the plaintiff thereby consented to waive a right which he otherwise would have had, still the property in the hay had not passed to the vendee, because this was a sale upon credit, and the vendee was not entitled to have possession of the goods until the credit expired; and if so, the property did not vest in him until the credit expired. [Holroyd J. In Comyn's Dig. tit. Agreement (B, 3), it is laid down, "That if a sale be of goods for such a price, and a day of payment limited; the contract will be good, and the property altered by the sale, though the money be not paid " and R.10 H. 73, 8 a. 14 H. 8, 20 a. and Dyer, 30 a. are cited. And again, If A. sell a horse to B. upon condition that he pay 20l. at Christmas, and afterwards sell it to D., the sale to D. is void, though B. afterwards do not pay," and Plowden's Com 432 b. is cited, and the reason there given is, that A. at the time of the second contract had no interest in, nor property, nor possession of the horse, nor any thing but a condition, and therefore the second contract was merely void.] It is true that in Noy’s Maxims p 88 it is laid down that "If  I sell my horse for money I may keep him until I am paid, but I cannot have an action of debt until he be delivered. Yet the property of the horse is by the bargain in the bargainee or buyer; but if he presently tender me my money and I refuse it, he may take the horse or have an action of detinue." But that relates clearly to the case of a ready money bargain. In Goodall v. Skellon (2 H. Bl. 316), A. agreed to sell goods to B. who paid a certain sum as earnest; the goods were packed in cloth furnished by the buyer, and deposited in a building belonging to the seller until the buyer should send for them, but the seller declared at the same time that they should not be carried away till he was paid. It was held that the seller could not maintain an action for goods sold and delivered. In the present case the hay was to remain in possession of the seller, and not to be cut till paid for. This is distinguishable, therefore, from Hinde v. Whitehouse (7 East, 558), where Sugars in the King's warehouse were held to pass to the buyer by the contract of sale, although the duties were not paid. It is more like Tempest v. Fitzgerald (3 B. & A. 680), where the purchaser of a horse for ready money rode the horse, and requested that it might remain in B's possession for a further time, at the expiration of which he promised to fetch it away and pay the price. This was assented to by the seller, and it was held, that the seller could not recover on a count for horses bargained and sold, there having been no acceptance of the horse within the meaning of the Statute of Frauds.

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 145l., 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.

Holroyd J. I think that in this case there was an immediate sale of the hay, accompanied with a stipulation on the part of the vendee, that he would not cut it till a given period. Now, in the case of a sale of goods, if nothing remains to be done on the part of the seller, as between him and the buyer, before the thing purchased is to be delivered, the property in the goods immediately passes to the buyer, and that in the price to the seller ; but if any act remains to be done on the part of the seller, then the property does not pass until that act has been done. I am of opinion, therefore, in this case, not only that the property immediately passed to the buyer by the contract, but that the seller thereby immediately acquired a right in the price stipulated to be paid for the goods, although that was not to be paid until a future day. The property having passed to the vendee, and having been accidentally destroyed before the day of payment, the loss must fall upon him.

Littledale J. The parties on the 4th of January stipulated for the sale and purchase of a stack of hay, to be paid for in a month. Thus the case would have stood, but for the note of the contract delivered to the buyer, and in that there was a stipulation, that the purchaser should not cut until the money was paid, but the property in the hay had already passed by the contract of sale to the purchaser, and the latter afterwards merely waived his right to the immediate possession. Then the property having passed to the buyer, the loss must fall upon him, and, consequently, this rule for entering a nonsuit must be made absolute.

Rule absolute.

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