The Hawaiian gazette., 1893-05-30

should Chulan & Co. be unable TO
any reason to deliver any Of tn,
paddy, they would certainly have t,
refund all the money advanced Will
interest. Under these circumstances
how can it be claimed that the It'll,
passed at the time of the agreement
or that there was a complete and alb
solute sale of these two, crops o
paddy
Two rules are stated by Lori
Blackburn, as follows : First
Where by the agreement the
vendor is to do anything to the
goods for the purpose of putting
them into that state in which the
purchaser is TO be bound to accept
them, or as it is sometimes worded
into deliverable state, the perform
ance of those things shall, in the
absence of circumstances indicating
contrary intention, be taken
to be condition precedent to the
vesting of the property" Second
" Where anything remains to be
done to the goods for the
purpose of ascertsining 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 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 3lS 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-
ther there had been a complete sale
of certain timber and plank lying in
a 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 l 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
and the measure ascertained, Dewey,
j., says: "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 vendee."
The rule as set down in the major
ity of the cases seems to be that
where the seller agrees to do any
hing for the purpose of putting the
into a state in which the
buyer is bound to accept it, or into
condition to be delivered, the title
will remain in him until he has per
formed the agreement in this respect.
In the case of Gibbs VS.. Benjamin,
Is Vt. 124, the defendant agreed to
purchase all the wood piled on
farm on the margin of
Lake Champlain at $3.50 per cord,
he wood to be measured to ascer-
ain the quantity. The parties met
or that purpose and they disagreed,
md the matter remained unsettled.
The wood was carried away by a
lood in the lake and lost. An action |
vas brought to recover the price of |
he wood. Redfeld, j., said: "The |
principle is we'll settled and uniform |
n all cases, that where anything re-
mains to be done by either or both |
,arties, precedent to the delivery, the
tile does not pass. And so infexible
5 the rule, that when the property |
as been delivered, if anything re-
Mains to be done by the terms of the
ontract before the sale is completed, |
he property still remains in the
endor The contract must be exc
uted to effect a complete sale, and
othing further to be done to ascer-
ain the quantity, quality or value of
ne property"
The same rule of law was applied
/ Hale vs.. Huntley q Vt, LAT; Full
II vs.. Bear, 81 N. H, 300; Prescott
S. Lock, 81 n. H, "a, and number
other cases from New Hampshire,
Indiana, Iowa and Michi-
an.
1t seems to us that it is unneces-
lry to make any further citation of
in support of this rnle,
ley are so numerous and uniform.
his being an action in replevin, in
-der to maintain this action, the
laintiffs must show right to the
a1,,-,r-o - - H. |