Westmoreland Coal Co. v. Syracuse Lighting Co.

Kruse, P. J. (dissenting) :

The practical question here is which of the parties shall bear the loss of the two boat loads of coal which were lost owing to a break in the canal occurring while the boats were waiting to be unloaded. The plaintiff, the seller, or the defendant, the buyer ? The solution of that question does not depend upon whether the plaintiff had delivered the coal alongside the dock, within the meaning of the contract. That is a mere circumstance to be taken into account in determining the controlling question as to whether the title to the coal had passed to the defendant before it was lost, or still remained in the plaintiff. If there was an appropriation of the specific coal to the contract, assented to by the defendant after the coal reached Syracuse, as I think should be found as a fact from the evidence, the title passed to the defendant and the loss *328must fall upon it. Even if the evidence is sufficient to make that question one of fact, I think it should be found in favor of the plaintiff.

It may be, as defendant’s counsel contends, that the record of arrival of boats was kept by the defendant to protect the plaintiff against unfounded claims for demurrage, but the record and surrounding circumstances also establish that the defendant knew that this particular coal had been set apart to it under the terms of the contract and was clearly identified by both the buyer and the seller. Not only did the defendant know the precise time and place of arrival of the coal, but a record of the quantity as well was made by it. The identification of the coal as the subject of the sale was complete.

Although the contract was originally executory, it was as to the coal in question so far executed before it was lost as to pass the title. As regards the passing of the title, it was in effect the same as though the coal had been set apart and identified as the subject of the sale at the time of the making of the contract. The subsequent appropriation of the coal to the contract was sufficient to pass the title to the defendant. (Cooke v. Millard, 65 N. Y. 352, 366; Terry v. Wheeler, 25 id. 520; 24 Am. & Eng. Ency. of Law [2d ed.], 1054, 1058, and cases there cited.) Although the coal may not have been delivered alongside the dock within the meaning of the contract, that was made impossible by a cause for which the plaintiff wáis not responsible, and if the title thereto had passed before the break in the canal, as I think it had, the loss of the coal should fall upon the defendant.

If I am right it follows that the judgment should be reversed.

Judgment affirmed, with costs.