Henderson v. Jennings

Citations

• 228 Pa. 188
• 77 A. 453
• 1910 Pa. LEXIS 451

Syllabus

<p>Contract — Sale—Passing of title — Damages—Measure of damages.</p> <p>1. Where there is a sale of goods generally, no property in them passes until delivery, because until then the very goods are not ascertained. ' But where by the contract itself the vendor appropriates to the vendee a specific chattel, and the latter thereby agrees to take that specific chattel and to pay the stipulated price, the parties are then in the same situation as they would be after a delivery of goods in pursuance of the general contract. The very appropriation of the chattel is equivalent to delivery by the vendor, and the assent of the vendee to take the specific chattel, and to pay the price is equivalent to his accepting possession. The effect of the contract, therefore, is to vest the property in the bargainee. If there is a breach the measure of damages is the stipulated contract price, and not the excess of the contract price over the market value at the time the actual delivery was to be made. If the chattel has a potential existence at the time the contract is made, it is immaterial that it does not come into actual existence until thereafter.</p> <p>2. A material man agreed in writing with a person interested in a building operation to sell and deliver material to the actual builder in consideration of one-half cash and one-half on a mortgage on one of the properties. The agreement particularly described the mortgage and the amount of it, and the other contracting party agreed to purchase it at its face value within sixty days after its delivery to the material man “without regard to title, completion, street improvements; liability for mechanics or municipal claims, as I purchase simply what you get.” The mortgage was not in actual existence at the date of the agreement, but was created thereafter. The material man furnished material, received the mortgage and tendered at the expiration of the sixty days, but the other party refused to accept it or pay for it. Held, that th