Yick Sung v. Herman

COOPER, J.

Action to recover $854 for two thousand and twenty sacks of potatoes alleged to have been sold by plaintiff to defendants at the following prices: Twenty sacks at forty-five cents per sack, and two thousand sacks at forty-two and a half cents per sack. The court found for plaintiff, and judgment was accordingly entered. This appeal is from the judgment on the judgment-roll and a bill of exceptions.

[634]

The appellants contend that the evidence is insufficient to* support the findings, and show that the potatoes were not up to the quality specified in the contract. The main discussion is as to whether or not the contract was a present sale by which the title passed, or an agreement to sell in future. The contract is as follows:

“Contract.

“Beceived from Erlanger & Galinger, the sum of five dollars as part payment for the following described goods, viz: 2,000 sacks B Bank at 42% per sack, delivered f. o. b. on Bank, all of which goods I have this day sold to said Erlanger & Galinger, at the above prices on the following conditions: All goods to be sound and merchantable, of fancy quality, on arrival at San Francisco. Sacks to be well filled and in good shipping order. Said Erlanger

&

Galinger agree on their part to pay balance of purchase price on the receipt of the bill of lading for said goods, shipped in accordance with the above terms and conditions, and as specifically described. Sack 115 lbs. Tick Sung, Seller. Erlanger & Galinger, Buyer, per F. Bshbach. Contract executed in duplicate. Dated November 20, 1902.”

The court found: “That it was intended, and so understood by and between plaintiff and defendants, that the said transaction was a sale and not a contract.” We are of opinion that the agreement was a sale, by which the title passed from the plaintiff to the defendants when the potatoes were sacked and delivered to defendants on the “Bank” as specified in the agreement. The agreement acknowledges the receipt of $5 as part payment for “2,000 sacks B Bank at 42% per sack, delivered f. o. b. on Bank, all of which goods I have this day sold to said Erlanger & Galinger.” The words “this day sold” mean a present sale. Of course, there remained something to be done. The plaintiff had to segregate, sack and deliver at the river bank all of said two thousand sacks of potatoes that were not already at the bank; but when the plaintiff had done this the title passed, and the potatoes, when so delivered, were the property of defendants. The authorities all hold that where the terms are expressed in a contract of sale by which a present sale is contemplated, and the articles or goods are delivered to the buyer at the place designated in the contract, the title vests in the buyer. Even