Stark County IL Archives Court.....Low, V Freeman 1850
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Source: Records Of Cases Illinois
Written: 1850

William W. Low, appellant, v. Samuel Freeman et al., appellees.

Appeal from Stark.

A contract by which A agrees to sell eight hundred bushels of corn, more or 
loss, within a specified time, at a stipulated price, does not give the vendee 
a property in the corn in question. Something remained to be done by the 
vendor to ascertain the exact amount sold. (a)

The remedy for a failure to perform, was an action for a breach of the 
contract. Replevin will not lie. (b)

This was an action of replevin, brought in the Marshall Circuit Court. Low, 
the plaintiff below, took a change of venue to Stark county. The action was 
founded upon the contract set out in the opinion of the court. The defendants 
filed two pleas, first, that they did not wrongfully detain, etc.; second, 
property in themselves. The cause was tried before Kellogg, Judge, and a jury, 
at November term, 1850. The jury found for the defendants, and a judgment was 
entered accordingly. Low moved for a new trial, which was denied, and he 
thereupon prayed this appeal.

The sheriff who executed the writ, proved on the trial that he replevied two 
wagon loads of corn in Lacon, and the residue he took at the farms of the 
defendants. Low proved by another witness that he called upon the defendants 
for the corn, that they replied that he was too late, that he did not come 
according to contract; that this was on the ninth of August. That the Freemans 
complained that they had not been furnished with sacks.

N. H. Purple, for appellant.

O. Peters, for appellee.

Treat, C. J. The foundation of this suit was the following contract:

"We, Samuel Freeman and Elijah Freeman, has this day sold to Wm. W. Low, eight 
hundred bushels of corn, more or less, at twenty cents per bushel, to be 
delivered at the mouth of Sandy, opposite of Henry, or at Wm. Fenn's warehouse 
in Lacon, if any thing should happen that Low could not get a boat to take it 
from opposite of Henry; to be delivered by the first of August next in 
merchantable good order, at the customary weight per bushel; received on this 
contract five dollars, and the balance of the money to be paid when all of the 
corn is delivered.
"Samuel Freeman. "Elijah Freeman.
"June 2, 1849."

The Freemans failed to deliver any corn under the contract. On the ninth of 
August, 1849, Low sued out a writ of replevin, under which the sheriff seized 
two hundred and eighty-three bushels of corn; fifty bushels of which were 
taken from the wagons of the defendants in Lacon, and the residue from the 
farm of Elijah Freeman. The plaintiff's right to the property replevied was 
put in issue by the pleadings. On the trial, the court instructed the jury, in 
substance, that the contract did not vest the title to the corn in the 
plaintiff; and that ruling may be considered as presenting the whole merits of 
the case. We concur in opinion with the circuit judge. It is very clear that 
the written contract, by itself and without reference to the surrounding 
circumstances, did not show a sale of the property in controversy. The subject 
matter of the contract was corn generally, and not any particular lot of 
corn.   The contract amounted, at most, to an undertaking on the part of the 
defendants, to deliver to the plaintiff eight hundred bushels of corn, at one 
of two places on the Illinois river, before a certain day, and at a stipulated 
price. It was in the power of the defendants to comply fully with their 
engagement, by the delivery within the time limited of that many bushels of 
corn, although they may have purchased the same after the contract was entered 
into.   They agreed generally to sell, and the plaintiff to purchase, a given 
quantity of corn. The latter thereby acquired no property in the corn in 
question. It was insisted on the argument, that the contract should be 
construed as a sale of all the corn the defendants then had. We think 
otherwise. If that was the design of the parties, they certainly would have 
used very different and more definite expressions. The phrase "more or less" 
indicates no such intention. If any operation is to be given to these words, 
they must be understood as providing for any trifling variance in the amount 
of corn delivered. If, on the measurement of the corn delivered, it should 
turn out that there were a few more bushels than the contract called for, the 
plaintiff might be bound to receive the excess; if, on the other hand, a few 
bushels should be wanting, the mere failure of the defendants to make up the 
deficiency might not be considered a breach of the contract. Suppose the 
defendants had on hand at the date of the contract ten thousand bushels of 
corn, would it be contended that the plaintiff had purchased and was bound to 
take the whole? And suppose that between the making of the contract and the 
time fixed for its performance, this large amount had been destroyed by the 
elements, without the fault of the defendants, would it be contended that the 
loss should fall on the plaintiff? And these conclusions would inevitably 
follow, if the construction insisted on is correct. By this construction, if 
the defendants were the owners of but one hundred bushels of corn, they might 
by delivering that amount have entirely discharged the contract. If it was 
proper to construe this contract in the light of the circumstances disclosed 
by the evidence, the rights of the plaintiff would be precisely the same. It 
would as clearly appear that he acquired no title to the property in 
controversy. The corn in the possession of the defendants when the contract 
was made, was unthrashed, and not in a condition to be measured. Labor had to 
be done upon it before it could be delivered. In such case the title would not 
pass to the plaintiff. "Although a contract for the sale of goods be complete 
and binding in other respects, the property in them remains in the vendor, and 
they are at his risk, if any material acts remain to be done before the 
delivery, either to distinguish the goods or ascertain the price thereof:" 
Chitty on Contracts, 375. In any point of view, we are clearly satisfied that 
the plaintiff acquired no such interest in the corn in question, as would 
authorize him to maintain replevin for its recovery. His remedy was an action 
for the breach of the contract to deliver the corn. 

The judgment is affirmed.

Judgment affirmed.

-----------------
(a) In the sale of personal property, where anything remains to be done to 
complete the contract, such as ascertaining quantity, or delivering 
possession, the title does not pass till the contract is thus completed: 
O'Keefe v. Kellogg, 15 Ill., 347; Schneider v. Waterman, 25 Ill., 424; Bell v. 
Farrar, 41 Ill., 400; Graff v. Fitch, 58 Ill., 373.

As between the parties to the contract actual delivery is not always 
necessary: Corgan v. Frew, 39 Ill., 31 (annotated edition), and note; Sidwell 
v. Lobby, 27 Ill., 438; Wade v. Moffett, 21 Ill., 110; Howard v. Babcock, Id., 
268.

(b) Updike v. Henry, 14 Ill., 378; Haverstick v. Fergus, 71 Ill., 105, accord.

Additional Comments:
Reports of Cases Determined in the Supreme Court of the State of Illinois from 
November Term, 1850, to June Term, 1851, both inclusive by E. Peck, Counsellor 
at Law. Volume XII. Reprinted from the Original Edition, with Annotations by 
William Gordon McMillan of the Chicago Bar. Callaghan & Company, Chicago, Ill. 
1881.

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