The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1893-05-26

Blackburn, as follows: - First
Where by the agreement III,
vendor is to do anything to til,
goods for the purpose of putting
them into that state in which the
| purchaser Is 10 be bound To aceept
them, or as 1T Is sometimes worded
into deliverable state, the perform
auce of those things shall, in the
absence of circumstances indicating
a contrary Intention, be taken
to be a condition precedent to the
vesting of the property" Second
Where anything remains to be
done to the goods for the
purpose Of ascertainiDg the price, as
by weighing, measuring or testing
the goods where the price is to de-
pend on the quantity or quality of
the goods, the performance of these
things also shall be a condition pre-
cedent to the transfer of the property,
although the individual goods be as
certained, and they are in the state
in which they ought to be accepted"
Benjamin on Sales, Sections 3I8 and
319, and cases there cited.
Chancellor Kent said IF the
goods be sold by number, weight or
measure, the sale is incomplete, and
the risk continues with the seller
until the specific property is separ-
ated and identified" 2 Kent, 1876.
In Riddle vs.. Varnum, 20 Pick.
$50, one point Of inquiry was whe-
Their there had been a complete sale
of certain timber and plank lying in
mill pond the purchaser of which
had signed writing in which he
acknowledged that he had received
of the vendor four shots of white oak
plank, etc., for which promise to
pay him twenty six dollars per thou
sand board measure. The above
timber delivered in the mill pond"
The vendor acknowledging in writ
ing that he had received from the
purchaser two hundred dollars in
part payment for the timber in
question, the timber was to be meas.
ured by the superintendent and the
measure was to be abided by. Before
the timber was measured, it was at
tached by one of the creditors of the
purchaser. In referring to the fact
that at the time of the attachment
the timber had not been surveyed
aud the measure ascertained, Dewey,
j., says: 1.-The general doctrine on
this subject is undoubtedly that
when some act remains to be done in
relation to the articles which are the
subject of the sale as that of weigh
ing or measuring x the per-
Torrance of such act is prerequisite
to the contamination Of the contract;
and until it is performed the prop
erty does not pass to the veDdee."
The rule as set down in the major
ity of the cases seems to be that
where the seller agrees to do any
thing for the purpose of putting the
property into n state in which the
buyer is bound to accept it, or into a
will remain in him until he has per
formed the agreement in this respect.
In the case of Gibbs VS.. Benjamin,
As VT 124, the defendant agreed to
purchase all the wood piled on
plaintiff g farm on the margin of
Lake Champiain at So 80 per cord,
the wood to be measured to ascer-
tain the quantity. The parties met
for that purpose and they disagreed,
and the matter remained unsettled.
The wood was carried away by a
food in the lake and lost. An action
was brought to recover the price of
the wood. Redfeld, j., said: 1.-The
is we'll settled and uniform
in all cases, that where anything re-
mains to be done by either or both |
parties, precedent to the delivery, the |
title does not pass. And SO infexible |
is the rule, that when the property |
has been delivered, if anything re
mains to be done by the terms of the |
contract before the sale is completed,
the property still remains in the
vendor. The contract must be exc |
cuted to effect a complete sale, and |
nothing further to be done to ascer-
tain the quantity, quality or value of
the property"
The same rule of law was applied |
in Hale VS.. Huntley q VT, 147; FuI
Ter VS.. Bear, 81 n. H, 900; Prescott |
VS.. Lock. 81 n. H, 81, and a number
Of other cases from New Ham Hshire, |
Arkansas, Indiana, Iowa and Iichi-
gan.
1t seems to US that it is urneces-
sary to make any further citation of
in support OF this rnle,
hey are so numerous and uniform.
This being an action in replevin, in
order to maintain this action, the
plaintiffs must show right to the
exclusive and immediate possession
10 themselves, as against the defend
ant; and the burden of proof lies
On them to do this. This case
must stand or fall on the written
agreement filed in evidence; and
We are of the opinion that no title
passed under it, that it is only an
,xecutory and conditional agree
nent, and does not effect an abso
ute and complete sale. We do not
lold that under this instrument the
plaintiffs would be without remedy
n an action for damages for breach
IF contract.
For the above reasons we are of
he opinion that the Court below did
lot err in giving the instructions
lsked for, and therefore the excep-
ions are overruled.
F. Nj. Hatch for plaintiffs; w. r.
Castle for defendant.
Honolulu, May 9th, 1898.
zzznzzE-zzz,-zz<.=zzz<..=
Co.,