Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1914-08-14
YORK COUNTY RESCRIPT
VERDICT FOR PLAINTIFF

York IS. David E. Russell VS.. Frank B.
Clark ct al Rescript, King. ].
On report. Action of assumpsit There
are four counts in the declaration. The
first is on an account annexed for certain
oak lumber claimed to have been sold
and delivered. The second alleges, in
substance, a sale and delivery of the
lumber specified In the account annexed.
The third alleges, contract on the part
of the defendants to take and receive all
the oak lumber the plaintiff then had at
prices specified f. o. b. cars at loading
point all TO be taken within six months
of date of contract and neglect and
refusal by defendants to take the lumber
specified in the account annexed. The
fourth is a general or omnibus count.
The plaintiffs alleged cause of action
arises out of two agreements between
the parties, the first having been made
on August q. 1910 and the other on Feb
ruary 10. 1911
1t is claimed in behalf of the plaintiff,
first, that by virtue of the agreements,
and the shipments of part of the lum-
Der hereunder and payment therefor.
the defendants became the owners of all
of the lumber, and that upon their neg
lect and refusal to furnish the plaintiff
with orders for it's shipment, they be-
came liable for what remained unshipped
at the contract prices as for goods sold
and delivered; and, second, that the de-
PENDANTS are liable in damages for not
taking all of the lumber as they agreed
to do.
Held:
/. The question whether sale of per-
sonal property is completed or only ex-
ecutory, in cases between buyer and
seller and where neither the statute of
frauds, nor the rights of third parties
are involved. depends upon whether it
was the intention of the parties at the
time the contract was made that the title
of the property should Immediately pass
to the buyer.
2. And where anything remains to be
done to identify the particular property
to be sold; or to ascertain the price to be
paid for it by selecting it as to quality,
or weighing or measuring as to quantity;
or where the seller is to do certain things
to the property to put it in that condi-
ton in which it may or ought to be ac-
cepted by the buyer, the performance of
those things are to be deemed presump-
lively condition precedent to the pass
ing of the title to the buyer.
g. Where under the agreement between
buyer and seller it is the duty of the SELL
er at his own expense, on receipt OF or
ders from the buyer, to select, haul, and
load lumber on cars to be procured by
him, before the buyer was bound to re-
ceive the lumber or make payment for
it, such agreement will not be construed
as an executed contract of bargain ana
sale, and the seller cannot recover for
the lumber unshipped in an action for
goods sold and delivered
A. Where an agreement for the sale
and purchase of lumber was made on
Aug. q, 1910 providing for it's shipment
within six months, the acceptance by the
seller of a subsequent agreement, on Feb.
10, 1911, which modified and extended the
original agreement must be held to be a
waiver of the buyers neglect to give or
ders under which all of the lumber might
have been shipped within the six months.
5. In the absence or any provision m
the defendants right to have the differ
ent kinds of lumber shipped out as they
ordered it, provided they furnished or
ders under which 1t could all have been
shipped reasonably within the terms OF
8. Each party introduced some evil
dence tending to show that the other
The burden, however. was on the plain
tiff to establish by a fair preponderance
of the evidence that he had kept and per-
formed his part of the agreements, and
that the defendants had without justifi-
cation neglected and refused to furnish
him with orders under which all the
lumber could have been shipped AFTER
evidence the court is led to the conclu-
sion that the plaintiff has not sustained
that burden, and that he is not entitled
to recover for a breach of the agreements
by the defendants.
L For the last carload of lumber
| shipped the defendants sent the plaintiff
| a check for s195.10 which was returned as
not being sufficient in amount. That car
| load is included In the account annexed.
An examination of the correspondence
between the parties just prior to that
| Shipment satisfies the court that the de-
| PENDANTS contention that there was a
new or special agreement as to the price
of that carload is not sustained. Ac-
cordingly the plaintiff is entitled to re-
cover for that carload at the prices
claimed in his writ; and it avails the de-