Story Case

Andrew Worsley, a brick dealer, and Richard Crane, a construction contractor, entered into a written contract by which Worsley agreed to sell Crane ten thousand brick, and Crane promised to pay ten dollars a thousand for the brick upon their delivery. Worsley further agreed to deliver the brick by barge to Crane's wharf. After this contract was agreed upon, Worsley engaged Henry Mack to load five thousand brick on each of two barges and convey them to Crane's wharf. Instead of loading two barges, Mack attempted to deliver all the brick on one barge. He was successful in loading them but, in the middle of the river, a leak occurred, and the boat quickly sank because of its heavy load. Worsley refused to deliver more brick and Crane brought suit, not against Worsley, but against Mack, for his negligence in causing the loss of the brick. Can Crane recover in this action?

Ruling Court Case. Mcdonald Vs. Hewett, Volume 15 Johnson's New York Reports, Page 349; Volume 8 American Decisions, Page 241

McDonald negotiated with one Nelson for the purchase of timber. When the terms were reached they entered into a written agreement for the sale and purchase of timber. By this agreement Nelson stated that he had sold to McDonald certain timber, then cut and ascertained, but as yet unmeasured. McDonald on his part agreed to pay for it, when measured in New York, at the market price of such timber at the time it was to be weighed. Nelson agreed to deliver or have it delivered in New York at a certain time for the purpose of having it measured. He engaged Hewett to convey the timber to New York. When Hewett arrived there with the timber, instead of measuring it and delivering it to McDonald, he measured and sold it to a third person.

McDonald then sued Hewett for the conversion of the timber. He contended that the contract was executed; and that the title to the timber had passed to him. By the defendant it was contended that the contract was executory and that no title passed until the measuring had been done.

Decision

McDonald has no remedy against Hewett in this case; the title to this lumber remained with Nelson. The former had a contract to sell, but it was an executory contract. The timber was still to be measured and delivered; and, until the timber was measured, no title passed. Although McDonald has a remedy against Nelson, he has no remedy against Hewett.

Ruling Law. Story Case Answer

Where persons enter into a contract, they voluntarily assume certain duties. These duties constitute the obligation of the contract. So long as these duties are not performed by the parties to the contract, the contract is said to remain executory. When the duties are performed, it is said to be executed in that degree. When all the duties of a contract have been performed, the contract is no longer executory, but is wholly executed.

In the Story Case, the contract was entirely executory. Worsley had not complied with his part in delivering the brick to the wharf. Until that was done, the brick was still his property. Mack, therefore was not conveying property belonging to Crane and owed no duty to Crane. Hence, Crane cannot recover in this action against Mack.