Story Case

Harvey Andrews, a grain merchant, sold to Walter Bowers, a cattle raiser, one hundred tons of hay. This was part of a total of five hundred tons which were stored in Andrews' warehouse. Bowers agreed to pay for the hay within ten days, and to haul it away within one month's time, weighing it on the town scales. Three days after this agreement was made, the warehouse and its contents were entirely destroyed by fire. Nevertheless, Andrews demanded the payment for his hay. Bowers refused to settle, on the ground that, since the hay was in the possession of Andrews when it burned, he, Bowers, held no title to it. Andrews brought suit for the price of the hay. Can he recover?

Ruling Court Case. Russell Vs. Carrington, Volume 42 New York Reports, Page 18

Russell purchased from Carrington a quantity of grain, stored in an elevator, as part of a larger mass. Russell paid the price and took a receipted bill of sale. The superintendent gave an order, permitting the buyer to remove the grain. But before Russell's grain was in any way separated from that belonging to Carrington, or was in any way identified, the elevator burned, and the grain was consumed. Then Russell sued for the failure of Carrington to carry out his contract. The latter replied that the grain was destroyed through no fault of his.

The judgment of the court was by Justice Lott: "When property out of which a purchase is made is a general mass of similar parts, title may be passed to a part of it without separation of a particular portion, or identification of the same. When the quantity sold is determined upon, and the mass from which it is to be taken is specified, title will pass at once. The receipted bill of sale and the order for delivery were evidence that it was the intention of the parties to have title pass at the time of the transaction. Therefore, title to the grain at the time of the fire was in Russell, and he must lose."

Ruling Law. Story Case Answer

Movable goods or commodities which lack individuality, and which are valued by weight or measure, are said to be fungible goods. A group of horses could not be classified in this division, since each animal has individuality, and is not like another in quantity or quality. Grains and coal are fungible goods. In a general ascertained mass of grain, one grain or one bushel of grains is not distinguishable from any other.

Where there is a sale of such goods, the title passes at once to the portion sold, although it has not been weighed and measured; if the seller's part in the contract is completed, this is said to be the intention of the parties. But if, for instance, the duty of weighing and measuring is on the seller, title does not pass until this particular thing is done. Hence, if before the weighing and measuring, the goods are destroyed, the loss is on the vendor. If, however, the purchaser has agreed to weigh and measure, or has agreed to move the grain, title passes at the time the contract is made, and, therefore, any loss will fall to him. In the Story Case, Bowers, the buyer, agreed to haul away the hay and weigh it on the town scales; therefore, title passed when the contract was made. Andrews can recover the price of the hay.