Smith v. Friend

Plaintiff had two stacks of hay, and contracted to sell to defendant one stack, together with enough off of the other stack to make sixty tons. The price was to be eighteen dollars per ton ; and the hay was to be baled by plaintiff, and piled up in a corral, and then he was to be paid. Plaintiff had sixty-two tons and four hundred and thirty pounds of hay baled, and piled up in the corral, the surplus over sixty tons being by mistake of the man employed to bale. The bales were of different weight. Plaintiff then went to the house of defendant, and told him that the hay was baled and piled up in the porral, and that there were two tons and some hundreds of pounds over the sixty bales piled up together, and asked defendant whether he would take the surplus. if Defendant said he would be over soon, and see about taking the surplus. Defendant then paid plaintiff two hundred dollars. Plaintiff sues for nine hundred and nineteen dollars balance due on the hay. The Court instructed the jury that if they believed from the evidence that it was the understanding of the parties, upon the payment of the two hundred dollars by defendant, the right and possession was deemed to have accrued to defendant to take the quantity bought as baled and stacked up in the corral, the plaintiff is entitled to recover, even though the bargain was not concluded as to the excess. Held, that the instruction was right; that the question was, whether there had been a delivery, and any agreement of the parties upon the subject was legitimate matter for the jury; that the fact that the hay purchased by defendant was mixed with other hay belonging to plaintiff, made no difference, if defendant agreed to accept it in that condition, and to consider it as delivered—the contract for delivery would be fully executed.

On the above facts, defendant asked the Court to instruct the jury that “ if plaintiff sold to defendant sixty tons out of sixty-two tons and four hundred and thirty pounds of hay, the same being in bales of different and unequal weights, and containing different quantities, and all being in the same pile, there was no delivery without division had.” The instruction was refused. Held, that the refusal was not error, because it assumed that there could not have been a delivery, whatever may have been the understanding of the parties, until the exact quantity contracted for was segregated and set apart for the defendant.