Agri Manufacturing Co. v. Atlantic Fertilizer Co.

Urner, J., delivered the opinion of the Court. A carload of ground tankage for use in the manufacture of fertilizer, was sold and shipped by the appellant, the Agri ⁴⁴ Manufacturing Company, to the appellee, the Atlantic Fertilizer Company, and was destroyed by fire before being removed from the car, and while awaiting official analysis and weighing at the appellee’s works. The question raised by this suit is whether the loss thus occasioned should be borne by the vendor or by the vendee, neither of whom was at fault in regard to the destruction of the property. The terms of the agreement relating to the sale are set forth in a letter from the appellant to the appellee under date of October 21, 1913, as follows: “Gentlemen: This will serve to confirm sale to you of about four hundred (400) tons of our regular production of Ground Tankage for approximate equal monthly shipments for months of January, February, March and April, 1914, at $2.67% per unit for ammonia per ton of 2,000 lbs. cif. your works, Curtis Bay, Md. Delivered weights and sampling by Stallings, analysis by Wiley & Co., at seller’s expense.

Bags to be furnished by buyer as far as possible; if furnished by sellers they are to be returned promptly at buyer’s expense. “Terms, % cash upon presentation of pro forma invoice and B/L, balance upon completion of weights and analysis. “These goods are sold upon the representation by sellers that the availability of the nitrogen they contain will show at least 70% by a permanganate method. In the event buyers should have any goods analyzed for available nitrogen, an official sample to be used, and they should prove to contain less than the 70% availability above mentioned, the expenses of said analysis shall be paid by sellers and buyers shall have the privilege of refusing said goods. “In all disputes, the sampling and weighing of Stallings and the analysis of Wiley & Co. to govern.” In the course of the deliveries under this contract a carload of ground tankage, estimated to contain about thirty ⁴⁵ tons, was shipped, on April 20, 1914, over the line of the Baltimore and Ohio Railroad, from Mt. Claire, Baltimore, to the appellee’s factory at Curtis Bay. The car reached the siding of the Atlantic Fertilizer Company on the. afternoon of Friday,- April 24th, and upon an order issued by the superintendent of the company it was. placed in position the following day for unloading.

Notice was. sent by the company to Mr. Stallings and to Messrs. Wiley and Company to be at its works on Monday morning, April 27th, to weigh and analyze the contents of the car as provided by the agreement. On the intervening Sunday a fire occurred at the appellee’s plant and the flames consumed the carload of fertilizer in question as it stood on the siding adjacent to the factory. The bill of lading for the shipment, in which the Atlantic Fertilizer Company was named as consignee, had been previously delivered to it by the sales manager of the vendor company, together with a pro forma invoice, upon which he received a payment of $661.00 representing three-fourths of the estimated value of the material on the basis of the ammonia content assumed by the contract of sale.

In this suit the vendor seeks to recover from the vendee a balance of $240.86 for the shipment referred to, and the sum of $203.88 on account of a carload which was delivered after the fire and upon which also a threerfourths payment was made on presentation of the bill of lading and pro forma invoice. The defendant filed general issue pleas to the declaration, and in addition interposed a plea of set-off claiming recovery from the plaintiff of the amount advanced on the carload destroyed, less the sum alleged and admitted to be due on the second car, and plus the freight charges of $7.95 paid by the vendee on the two consignments. There was no dispute as to the correctness of the figures upon which the opposing claims were based, and it was conceded in effect that if the plaintiff company was entitled to recover, the verdict in its favor should be for the sum of $444.74, otherwise the finding' should be for the defendant, on its claim of set-off, to the ⁴⁶ amount of $461.62. At tie close of tie plaintiff’s case tie trial Court granted an instruction to .tie jury tlat there was no legally sufficient evidence to support a verdict for tie plaintiff and that they should find in favor of the defendant for tie sum'just indicated.

From tie judgment entered upon tie verdict thus directed tie plaintiff las appealed. Tie principles which must control tie decision of tie question raised by exception to tie instruction to which we lave referred are embodied in tie Uniform Sales Act, whose provisions were enacted as part of tie statute law of this State by tie Acts of 1910, Chapter 346 (p. 272), and are codified as sections 22 to 98, inclusive, of Article 83 of tie Code of Public General Laws. By section 43 of tie Act it is provided: “Unless otherwise agreed, tie goods remain at tie seller’s risk until tie property tlerein is transferred to tie buyer, but when tie property tlerein is transferred to tie buyer, tie goods are at tie buyer’s risk, whether delivery las been made or not.” There is an exception stated to this general rule, but it is not pertinent to tie present inquiry. Section 39 declares tie rule in reference to tie transfer of title to tie goods sold, as follows: “(1) Where there is a contract to sell specific or ascertained goods, tie property in them is transferred to tie buyer at such time as tie parties to tie contract intended it to be transferred.

(2) For tie purpose of ascertaining tie intention of tie parties, regard shall be lad to tie terms of tie contract, tie conduct of tie parties, usages of trade and tie circumstances of tie case.” It is provided by section 29: “Where there is a contract to sell specific goods1, and subsequently, but before tie risk passes to tie buyer, without any fault on tie part of tie seller or tie buyer, tie goods wholly perish, tie contract is thereby avoided.” Specific goods, as defined by tie Act, are “goods identified and agreed upon at tie time a contract to sell or a sale is made.” Tie sale in this case was not of specific goods, as it related to an undistinguished quantity of the seller’s “regular production of ground tankage.” Buie 4 of section 40, ⁴⁷ however, provides: “Where there is a contract to sell unascertained or future goods by description, and goods of that description and in a deliverable state are unconditionally appropriated to the contract, either by the seller, with the assent of the buyer, or by the buyer, with the assent of the seller, the property in the goods thereupon passes to the buyer. * * * Where in pursuance of a contract to sell, the seller delivers the goods to the buyer, or to a carrier or other bailee (whether named by the buyer or not), for the purpose of transmission to or holding for the buyer, he is presumed to have unconditionally appropriated the goods to the contract, except in the cases provided for in the next rule and in section 41. The next rule is as follows: “If the contract to sell requires the seller to deliver the goods to the buyer, or at a particular place, or to pay the freight or cost of transportation to the buyer, or to a particular place, the property does not pass until the goods have been delivered to the buyer or reached the place agreed upon.” Section 4-1 to which the exception noted in Enle 4 of section 40 refers, is concerned with conditions which have no relation to such an issue as the one now presented. In the case before us the seller contracted to deliver 400 tons of fertilizer, of the kind and quality described, at the buyer’s works. The term “cif your works,” as used in the agreement, is shown by the testimony to mean that the seller should pay the cost, including freight, incurred in the transportation.

The material shipped and destroyed by the fire was appropriated by the seller to the contract, hut as it was the duty of the seller, under the terms of the sale, to make delivery at the buyer’s factory, and to pay the freight on the shipment, the rule last quoted precludes any question as to the transfer of the title before the delivery at the designated place was accomplished. It is, therefore, unnecessary to consider what, in the absence of such a stipulation, is the ordinary effect upon the title of delivering goods to a common carrier and of consigning them to the. buyer upon a bill of lading issued in his name, and of the payment of part of ⁴⁸ the purchase money. Whether the title to the specific carload of fertilizer under inquiry passed to the buyer as soon as it reached the place of destination depends upon the question as to whether the parties to the' sale intended the transfer of the title to occur at that point of time or to be deferred to a later period. The intention of the parties is the controlling factor in the determination of such an issue.

This is the plain import of the provisions we have reproduced from the Uniform Sales Act, which simply declare in this respect the settled rule of the common law. Lucas v. Taylor, 105 Md. 107 . /ALpon the question of intention in regard to the time when the title should pass we have nothing in the record of any special significance beyond the written terms of the sale. There were no .acts of the parties reflecting