Story Case

Mr. Adolf Kleiner, buyer of leather for the Florsheim Shoe Company, came to Chicago and personally selected five thousand "green" hides at the tanneries of Marley and Sons. Mr. Kleiner agreed to pay twenty cents per square foot for the hides when ready for delivery. They were to be tanned and measured by Marley and Sons. After the tanning process had been completed, but before the measuring was begun, the hides were totally destroyed in the fire that burned the warehouse of Marley and Sons. Marley and Sons maintained that the hides belonged to Florsheim Shoe Company, and the loss was theirs. In the subsequent suit by Marley and Sons to recover the price from the Florsheim Shoe Company, will the court find that the title had passed to the latter?

Ruling Court Case. Foster Vs. Ropes, Volume 111 Massachusetts Reports, Page 10

Foster, who is a dealer in fish, on April fifteenth, agreed to sell Ropes 775 quintals of cod fish. It was agreed that Foster should put them in a deliverable condition. In order to do this, it was necessary to dry the fish. After drying them, Foster also agreed to weigh them before delivery. Ropes refused to accept them, because, as he contended, they were not fit for sale. But Foster sued him for the whole price, upon the theory that title had passed to Ropes.

Foster testified that he understood that the fish were at his risk until weighed and delivered, but that he considered the fish as belonging to the defendant from the day they were sold.

Mr. Justice Colt said: "In the case at bar, it was not in dispute at the time, that, by the contract of April 15th, the fish were to be put in flakes and further dried by the plaintiff, and afterwards weighed by him for the purpose of ascertaining the quantity and price. This was to be done for the purpose of fitting the goods for delivery. By the general rule, therefore, the property not actually taken away by the defendant, remained in the plaintiff, unless there is evidence which would justify the jury in finding that by further agreement, notwithstanding this feature of the contract, the title was to pass immediately to the defendant. We can find no evidence of such agreement in the case stated." Judgment was given for Ropes.

Ruling Law. Story Case Answer

If the subject matter of the sale is not in a deliverable condition, it is presumed that the intention of the parties is that the title shall not pass until it is put in a deliverable condition. This means that all things contemplated by the parties to carry out their contract shall be done. If weighing or measuring is to be done by the seller, in order to determine the price, the goods are not yet in a deliverable condition, as contemplated by the parties, and title will not pass until the weighing and measuring has been done. If the buyer is to do the weighing merely for his own convenience, this is not necessary as a condition to the passing of title.

An examination of the Story Case shows that there was no intention that title to the hides should pass, until they became leather and were measured by Marley and Sons. Until that time, the material was not in deliverable condition and remained the property of Marley and Sons, who must suffer the loss.