The authorities relied on by the respondents, all of which are cited and most ofthem commented on in the respondents' brief in Adams et al. v. Gorham et al., are the following:
1. As to the nature of the action. (Roberts v. Randall, 3 Sandf. 712; Chappel v. Skinner, 6 How. Prac. R. 339; 2 Greenleaf on Ev. Sec. 638.)
2. As to the necessity of proving title to specific property. (Rapalje v. Mackie, 6 Cowen, 250; Lansing v. Turner, 2 Johns. R. 16; Story on Sales, Sec. 340; Austin v. Craven, 4 Taunt, 644; Austin v. Young, 6 Pick, 280; Gardiner v. Suydam, 3 Seld. 357; White v. Wilks, 5 Taunt. 175; Burrall v. Jacob, 1 Barb. 167; Jackson v. Hale, 14 How. U.S. 525.
Cases, apparently contra, commented on. (Jackson v. Anderson, 4 Taunt. 24; Chapman v. Searle, 3 Pick. 38; Pleasants v. Pendleton, 6 Rand. 473; Gibson v. Stevens, 8 How. U.S. 384.
As to the Haxall flour. The plaintiff did not succeed in proving any identification of 324 specific barrels of Haxall flour, as will appear from an examination of the evidence.
2. The assumption of a sale by Barker & Paddock to West is purely gratuitous. There is no such fact contained inthe statement. The proof is that they endorsed the order for the flour to West, but this was done to enable him to sell it on their account, as their agent, and for no other purpose.
The case cited from 2 Vermont does not sustain the plaintiffs' position. That was the case of the bill of sale of a specific chattel, about the identity of which there could be no dispute. The question here is not whether the endorsement and transfer of these delivery orders is not sufficient to pass the title to any specific flour comprised in such order, but whether it is in itself sufficient to give a perfect title to so many specific barrels out of a large number.
3. A mere intention to segregate, unaccompanied by any acts tending to show a legal segregation, cannot operate to effect a transfer of property. There may have been evidence tending to show an intention to segregate, but if it went no further, the plaintiff was properly non-suited.
Whether there is any legal evidence tending to prove an essential fact in the plaintiffs' case, is a question of law, which must always be be passed upon by the Court. (1 Greenleaf Ev. Sec. 49.)
Undoubtedly, where certain acts are done in referenceto property, which may or may not be sufficient to pass the property, according to the intention of the parties, then such intention is a question of fact to be submitted to the jury. But where the acts, whatever was the intention of the parties, are legally ineffectual to pass the property, the intention becomes altogether immaterial.
As to cases referred to by plaintiff:
Hollingsworth v. Napier (3 Caines, 185), the delivery order of the ten bales was followed by a separation of those bales and a marking of them with the plaintiffs' initials, p. 182. After this the defendant undertook to stop in transitu .
Expressions may be found in the books as in the case just cited, that the delivery of the order is itself a delivery of the goods. This is true, where the specific goods exist answering to the terms of the order. But where a separation is necessary to ascertain what are the specific goods referred to, the transfer of the order cannot pass the property.
In Wilkes v. Ferris (5 Johns. 335), there was no question as to segregation.
In Riddle v. Varnum (20 Pick. 280), there was no question as to the specific property. The property hadbeen already passed.
In Pleasants v. Pendleton (5 Randolph, 73), the Court went very far out of its way to discuss questions not presented in the record.
The only authority cited in the case is 4 Taunt. 24, which is contrary to the whole series of English authorities, as Austin v. Craven (4 Taunt. 644); White v. Wilks (5 Taunt. 175).
In Downer v. Thompson (6 Hill, 212), the Court put the case on the ground that the defendant, though he had ordered 250 barrels of flour, and was not legally bound to accept the 260 barrels, had waived this objection. (See p. 212.)
But whatever be the ground on which this case was decided, it is not authoritative on this Court. A sounder view of the case will be found in the opinion of the Supreme Court of New York (2 Hill, 238).
4. On the contrary, the case shows that no such segregation had been made. The mere giving of an order, and a transfer on the warehousemen's books of an entry of so many barrels from A. to B., cannot, in the nature of things, effect a segregation. Segregation must be effected by some physical act. It cannot be accomplished by a mental process. There may be a symbolical deliveryof specific articles, but there can be no symbolical segregation. If A. had no specific barrels, how could such entry, or assignment of order, vest B. with title in so many specific barrels?
5. Piper had made no separation. He merely held an order for 200 barrels, and we say visited the warehouse, and looked at certain barrels out of a certain 200; still, he made no separation, nor did he agree to take any specific barrels.
6. There was no separation as far as Adams, Welch & Co. were concerned, as this Court has already decided. January Term, 1856. It is a fallacy to suppose that the plaintiff ever had any title to any specific barrels; he had merely a right of selection, which he never perfected.
But it will be said, supposing Adams, Welch & Co. had taken all their flour, and that all the other holders of flour, except plaintiffs, had taken theirs, and that the flour then remaining and not subject to any outstanding orders, had been wrongfully removed by defendants, would not there then have been a sufficient segregation, although the plaintiff had not actually segregated or separated the flour? and if there would have been a separation in that case, why not in this?
Theanswer is, because different holders of different orders for portions of flour, or any other commodity, to be selected out of a larger mass, from which such portions are as yet undistinguishable, hold such orders under a presumed mutual understanding that each party may go and select his property, and that whatever remains after all but one have made such selection, falls to the lot or share of that one.
The plaintiff says, point 5, " All the Gallego in the warehouse was short of the calls of our title papers." This is not so.
The plaintiffs claim 1,320 barrels Gallego, while the sheriff carried away 1,482.
JUDGES: The opinion of the Court was delivered by Mr. Justice Heydenfeldt. Mr. Justice Terry concurred.
OPINION
HEYDENFELDT, Judge
On the 8th February, one West had in store 3,276 barrels of Gallego flour, and 572 barrels of Haxall flour.
Subsequently, West sells at two different periods to the plaintiffs, an aggregate of 1,700 barrels of the Gallego, and 324 barrels of the Haxall, but which at the time of the respective sales were not separated from the bulk of West's flour.
Subsequent orders of West in favor of other purchasers, to whom the flour was delivered, reduced the amount in store of the original bulk, before the seizure by the defendants, to 1,482 barrels of Gallego, and 324 barrels of Haxall.
There was also in store at the time of the seizure, 200 barrels of Haxall flour, a different and subsequent lot sent there by West, and sold by him to Piper; but this can make no figure in the transaction, because it was separate and apart from the other flour by position in the warehouse, sufficiently to be distinctly known, and specifically delivered. It was not mingled with the other Haxall flour, but was placed upon the top of the large quantity of Gallego flour, from which it was distinguished by its brand, and in that position was seen and accepted by the buyer, pointed out and specified by the warehousemen.
The title therefore of the plaintiffs, was clear to 1,700 barrels of Gallego and 324 barrels of Haxall flour, and much less than this amount was in store at the time of the seizure.
Under this state of facts, I do not see how it can be insisted, that the title did not vest absolutely in the plaintiffs for want of segregation. There was in fact, at the time of the alleged taking by the defendants, nothing from which to separate it, because it was mingled with nothing. When it was first purchased by plaintiffs from West, it remained in bulk with West's flour. A separation could then have taken place, either by the plaintiffs removing the part purchased by them, or West removing his remaining portion. This latter was effected by the orders of West to subsequent purchasers, which, indeed, it seems extended beyond West's remainder.
No embarrassment can be created by the claim of Adams, Welch & Co. for 162 barrels, because their purchase from West was subsequent to the plaintiffs', and there was no flour in the store to meet the order in their favor.
It was said in the argument that the plaintiffs sue only for 1,664 barrels of flour, whereas the sheriff seized 2,006 barrels, of which it seems 200 barrels were the specified property of Piper, leaving 1,806 barrels of the original lot out of which plaintiffs purchased, and therefore it is urged there is no particular 1,660 barrels which are sought to be recovered, and the action must fail for want of segregation. But I have shown that the entire 1,806 barrels were the property of the plaintiffs, and indeed less than the amount they had purchased from West; and surely it cannot be argued with any degree of propriety, that the doctrine of segregation is applicable to one man's property alone, and for the purpose of bringing a suit against a trespasser. If the plaintiffs choose to confine their claim to 1,660 barrels, instead of extending it to the whole, it only amounts to a waiver of their right to that which remains unclaimed, and so far operates as a benefit to the defendants.
It results from the examination we have made of the facts of this case, that the plaintiffs are entitled to recover judgment against the defendants for the sum of the price of 1,660 barrels of flour, at $ 12 per barrel, to which the district judge who tried the case upon the facts, may add legal interest from the time of the seizure by way of damages, if in his discretion it is proper to allow it.
Judgment reversed, and cause remanded.