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chased an island in a navigable lake at all seasons of the year, it could be located one half of a mile from the made available for the transportation mainland and opposite other land of to and from the land of all things the grantor, the court in Moore v. Day needed in the use of the land in the (1921) 199 App. Div. 76, 191 N. Y. ordinary way; the mere fact that this Supp. 731, affirmed in (1923) 235 N. was less convenient and desirable Y. 554, 139 N. E. 732, held that no way than a way by land would not be suffiby necessity existed over lands of the cient to give a way by necessity over grantor from the lake shore to a pub- the defendant's property; merely belic highway lying on the opposite side cause the way would be more convenof the grantor's lands, where it ap- ient and beneficial is not sufficient. pears that the plaintiff could reach It has been held that a statute rethe mainland at another point by a quiring a right of way to be left open motor boat at a public dock. The fact across “land surrounding the land of that it was more convenient to have another” does not create a way in faa direct approach to the island over vor of land surrounded on three sides the land of the grantor did not make by a river marking a boundary bethat way a necessary instance to the tween two countries, over land boundenjoyment of the island.

ing it on the fourth side. Anderson However, in Massachusetts, the v. Engler (1916) Tex. Civ. App. —, rule is that way by necessity exists 184 S. W. 309. The court said that over the land of the grantor, al- the law by its terms did not apply to though the grantee's land borders on a tract of land situated as this, but the ocean,

the way by water is was intended to protect a small lard. not available for general purposes owner whose land might be inclosed to meet the requirement of the uses in a pasture or other inclosure, and to which the property would nat- that, while it was unfortunate that it urally be put. Grammar School V. did not include land bounded as in the Jeffrey's Neck Pasture (1899) 174 case at bar, the court had no authority Mass. 572, 55 N. E. 462. In that case to extend it to include such. it appeared that a steamer usually Also, of interest in connection with ran past the property in the summer, the question here under annotation is and was commonly used by persons as the decision in Hetfield v. Baum a means of access to and from the (1852) 35 N. C. (13 Ired. L.) 394, 57 land, but there was testimony that the Am. Dec. 563, that a right of way by only way to get to the property with necessity exists in favor of the state, a team was by the way claimed; more- over land granted to an individua: over, it appeared that at the time of bordering on the seashore, to salvage the original grant, the property sold ships wrecked on the beach, which was used as a pasture, and that the may be exercised by individuals purparties contemplated the use of a way chasing at wreck commissioner's sale. over the grantor's land as a means although the goods could be carried of access thereto. The court re- away by sea or along the beach, where marked, however, that if it appeared both of such ways would cause gresi that the way by water could be used inconvenience.

G. S. G


v. LEON J. JAUSSAUD et al., Co-partners, Doing Business under the Name

of Leon J. Jaussaud & Company, Appts. Washington Supreme Court (In Banc) - February 16, 1925.

(132 Wash. 667, 233 Pac. 35.) Sale, $ 93 — conditional §

- effect of destruction of property pending performance. 1. Where, pending performance of a conditional sales contract, the prop


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(132 Wash. 667, 233 Pac. 35.) erty is accidentally destroyed, the vendee cannot be held for the unpaid purchase price in jurisdictions where no title passes under such contract.

[See note on this question beginning on page 1319.] Sale, $ 25 executory contracts Sale, $ 92 conditional

no title destruction of property incidence passes. of loss.

3. No title passes under a condi

tional sales contract and the relation 2. Generally, if a specific chattel

of debtor and creditor is not created. agreed to be sold under an ordinary

sale is deexecutory contract of

Sale, & 92 conditional effect of stroyed before consummation of the

inability of one party to comply.

4. The promises of the parties to a sale, the loss will fall upon the

conditional sales contract being muvendor.

tual and interdependent, when one [See 24 R. C. L. 494, 3 R. C. L. Supp. cannot comply, the other is under no 1372.]

obligation to do so.
(Tolman, Ch. J., and Bridges and Parker, JJ., dissent.)


APPEAL by defendants from a judgment of the Superior Court for Walla Walla County (Mills, J.) in favor of plaintiff in an action brought to recover the purchase price of a harvester sold by plaintiff to defendants. Reversed.

The facts are stated in the opinion of the court.

Messrs. Sharpstein, Smith & Sharp- Phenix Ins. Co. v. Hilliard, 59 Fla. 590, stein, for appellants:

138 Am. St. Rep. 171, 52 So. 799; LanUnder a conditional sale contract, caster v. Southern Ins. Co. 153 N. C. where the absolute and complete own- 285, 138 Am. St. Rep. 665, 69 S. E. ership and title to the property are 214; Tufts v. Griffin, 107 N. C. 47, 10 vested in the seller, and where before L.R.A. 526, 22 Am. St. Rep. 863, 12 S. any payments become due on the part E. 68; Burnley v. Tufts, 66 Miss. 48, 14 of the prospective purchaser, the Am. St. Rep. 540, 5 So. 627; Exposiproperty is accidentally and without tion Arcade Corp. v. Lit Bros. 113 Va. fault destroyed by fire, the loss falls 574, 75 S. E. 117, Ann. Cas. 1913D, upon the owner.

335; Phillips v. Hollenberg Music Co. 24 R. C. L. “Sales," § 310; 35 Cyc. 82 Ark. 9, 99 S. W. 1105; Harley & "Sales" 344; Hawley v. Kenoyer, 1 Willis v. Stanley, 25 Okla. 89, 138 Am. Wash. Terr. 609; Hogan v. Kyle, 7 St. Rep. 900, 105 Pac. 188; National Wash. 595, 38 Am. St. Rep. 910, 35 Cash Register Co. v. South Bay Club Pac. 399; McCroskey v. Ladd, 96 Cal. House Asso. 64 Misc. 125, 118 N. Y. 455, 31 Pac. 558; Winton Motor Car- Supp. 1044; Jessup v. Fairbanks, M. & riage Co. v. Broadway Auto Co. 65 Co. 38 Ind. App. 673, 78 N. E. 1050; Wash. 650, 37 L.R.A.(N.S.) 71, 118 American Soda Fountain Co. Pac. 817; Peterson v. Chess, 92 Wash. Vaughn, 69 N. J. L. 582, 55 Atl. 54; 682, 159 Pac. 894; Norman v. Meeker, Collerd v. Tully, 78 N. J. Eq. 557, 80 91 Wash. 534, 158 Pac. 78, Ann. Cas. Atl. 491, Ann. Cas. 1912C, 78; O'Neill1917D, 462; Barbour v. Hodge, 99 Adams Co. v. Eklund, 89 Conn. 232, Wash. 578, 170 Pac. 115; J. M. Arthur 93 Atl. 524, Ann. Cas. 1918D, 379; Osá Co. v. Blackman, 63 Fed. 536.

born v. South Shore Lumber Co. 91 Messrs. Evans & Watson and Wis. 526, 65 N. W. 184; Charles A. Hamblen & Gilbert, for respondent: Stickney Co. v. Nicholas, 98 Neb. 287,

Under a conditional sales contract, 152 N. W. 554; Williston, Sales, § 304; where title is reserved in the seller as 35 Cyc. 670; 24 R. C. L. 8 788, p. 494; security for the payment of the pur- Greenbaum v. Com. 147 Ky. 450, 144 chase price, and the subject of the S. W. 45, Ann. Cas. 1913D, 338; Marion sale is destroyed, the loss falls up- Mfg. Co. v. Buchanan, 118 Tenn. 238, on the purchaser, and he is still li- 8 L.R.A.(N.S.) 590, 99 S. W. 984, 12 able for the purchase price.

Ann. Cas. 707; Hollenberg Music Co. Chicago R. Equipment Co. v. Mer- V. Barron, 100 Ark. 403, 36 L.R.A. chants Nat. Bank, 136 U. S. 268, 34 (N.S.) 594, 140 S. W. 582, Ann. Cas. L. ed. 349, 10 Sup. Ct. Rep. 999; 1913C, 659; Whitlock v. Auburn Lum

38 A.L.R.-83.

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ber Co. 145 N. C. 120, 12 L.R.A.(N.S.) it is hereby expressly agreed that 1214, 58 S. E. 909; Lavalley v. Raven- the Holt Manufacturing Company na, 2 L.R.A. (N.S.) 97, and note, 6 Ann. does not part with the title to the Cas. 685, and note; 78 Vt. 152, 112 Am.

said caterpillar combined harvester St. Rep. 898, 62 Atl. 47; Messenger v.

but retains and holds the title and Murphy, 33 Wash. 353, 74 Pac. 480;

ownership thereof absolutely until Peterson v. Chess, 92 Wash. 682, 159 Pac. 894.

said notes and mortgage are executFullerton, J., delivered the opin

ed and delivered." ion of the court:

In due course the harvester was The contract between the parties shipped to the designated station, to this action was in the form of a

where it was unloaded and put into written order made by appellant possession of appellants, at which Jaussaud and accepted by respond

time they were requested to sign the ent, the Holt Manufacturing Com- already prepared notes and mortpany, for the purchase and sale of

gage provided for by the contract, a particularly described caterpillar

but they did not then sign them, regas combined harvester. The writ- questing that they be sent to Walla ing recites the sale of the harvester

Walla for that purpose.

In due to appellants, and provides that it is

course they were so forwarded, and to be shipped to them at a certain appellants were again requested to railroad station in eastern Washing- sign them, but they refused to do so, ton. The appellants agreed in the because, as they claimed, the mortwriting to pay therefor $4,550. One

gage did not comply with the terms hundred dollars was paid in cash on

of the original agreement. Meanthe execution of the contract, and

while, appellants had taken the har$300 additional was agreed to be

vester to their farm, set it up, and paid on the arrival of the harvester

had done two or three days' work at the station, $2,250 August 1, with it, when it was totally de1921, and $1,900 August 1, 1922, the stroyed by fire without their fault. deferred payments drawing inter

The notes and mortgage were never est. The contract further provided

executed. The first deferred parthat “the undersigned (appellants)

ment of $2,250 becoming due and hereby expressly agree to execute

remaining unpaid, respondent, unnotes for the above deferred pay

der the terms of the contract, de

clared all of the deferred payments ments, and to give as security therefor a first mortgage upon said cater

due and sued therefor, the suit being pillar combined harvester herein

based upon the contract from which mentioned on arrival at the station

we have quoted. designated above.


The chief defense was that at the mortgage shall be in the usual form,

time the machine was destroyed the and shall require the mortgagor to

title thereto was in respondent, and pay all taxes assessed against said

that the consideration failed be caterpillar combined harvester, to- cause of the destruction of the hargether with all other liens; to keep

vester. When all of the testimony the same insured against loss or

had been taken respondent moved damage by fire from the time of its

that the case be withdrawn from receipt until the payments are fully the jury and for judgment in its famade. Insurance policy to read

vor, and at the same time appellants loss, if any, payable to Holt Manu- made a like motion, and by agree facturing Company, Stockton, Cal., ment the case was taken from tht mortgagee, as its interest may ap- jury and left to the determination of pear.'

Should the under- the court, which entered judgment signed receive said caterpillar com

for respondent, from which appeal bined harvester without executing

is taken. the notes and mortgage above men- Appellants in their brief put the tioned, he hereby waives all claims issue as follows: "A single quesunder said mortgage.

And tion is then presented to this court,

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(132 Wash. 667, 233 Pac. 35.) whether, under conditional sale con- written contract, even though the tract, where the absolute and com- notes and mortgage were never givplete title to the property is vested en; in fact, it seems to have been in the seller, and where, before any contemplated that that might be the payments become due on the part of situation, for the contract provides: the prospective purchaser, the prop- “Should the undersigned (appelerty is accidentally and without lants) receive said caterpillar comfault destroyed by fire, the loss falls bined harvester without executing upon the owner or the prospective the notes and mortgage above menpurchaser."

tioned he hereby waives all claim Where there is an ordinary ex- under said mortgage.” ecutory contract of sale of a specific But in that event it further prochattel, the general rule is that if vided the title was not to pass until

the property agreed payment was actually made. The Sale-execatory to be sold is de- question then is: Upon whom does contractsdestruction of stroyed before the the loss rest under such a contract? property-in

of While the weight of authority the sale, the loss seems to be that the purchaser must will fall upon the vendor because the bear the loss, that rule is generally title is in him; in other words, un- sustained where a different rule obder such circumstances the loss fol- tains in this state as to the nature lows the title. 24 R. C. L. 494. and effect of the conditional sales Thus, if two parties enter into a contracts. The following authorcontract, one agreeing to sell and ities support the doctrine, 24 R. C. the other to purchase a designated L. 494; 6 Am. & Eng. Enc. Law, chattel, payment to be made at the 455; Burnley v. Tufts, 66 Miss. 48, time of delivery, and before the 14 Am. St. Rep. 540, 5 So. 627; agreement is consummated by de- Harley & Willis v. Stanley, 25 Okla. livery the article is destroyed, the 89, 138 Am. St. Rep. 900, 105 Pac. loss must be borne by the seller, and 188; Marion Mfg. Co. v. Buchanan, he has no rights against the pur- 118 Tenn. 238, 8 L.R.A. (N.S.) 590, chaser, nor has the latter any rights 99 S. W. 984, 12 Ann. Cas. 707; Holagainst him. Hence, it becomes es- lenberg Music Co. v. Barron, 100 sential to determine whether the Ark. 403, 36 L.R.A.(N.S.) 594, 140 same rule applies to a contract of S. W. 582, Ann. Cas. 1913C, 659; conditional sale. The important Whitlock v. Auburn Lumber Co. 145 parts of the present contract were N. C. 120, 12 L.R.A. (N.S.) 1214, that appellants agreed to pay a des- 58 S. E. 909; Exposition Arcade ignated sum at certain fixed periods. Corp. v. Lit Bros. 113 Va. 574, 75 When the harvester was received by S. E. 117, Ann. Cas. 1913D, 335; them they were to execute notes evi- Tufts v. Wynne, 45 Mo. App. 42; dencing the deferred payments and Lavalley v. Ravenna, 78 Vt. 152, 2 secure the same by a mortgage on L.R.A. (N.S.) 97, 112 Am. St. Rep. the harvester. Upon that being 898, 62 Atl. 47, 6 Ann. Cas. 684. done the complete title to the ma- While the various authorities in chine would vest in them. The title support of the view differ somewhat to the harvester was to remain un- in their reasoning, the general trend conditionally in respondent until is expressed in Burnley v. Tufts, 66 payment was made, either by giving Miss. 48, 14 Am. St. Rep. 540, 5 So. the notes and mortgage or other- 627, where the court said: “Burnwise. Appellants were to have and ley unconditionally and absolutely actually did have possession of the promised to pay a certain sum for harvester, but it was plainly the in- the property the possession of which tention of the parties that the title he received from Tufts. The fact should remain in respondent until it that the property has been destroyed was paid for. The whole transac- while in his custody and before the tion might easily stand upon the time for the payment of the note

consummation cidence of loss.


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last due, on payment of which only the property, and distinguishes the his right to the legal title of the case from the ordinary executory property would have accrued does contracts of sale under which the not relieve him of payment of the loss falls on the seller in case the price agreed on. He got exactly property is destroyed before the title what he contracted for, viz., the pos- has passed. On the other hand, on session of the property and the right the theory that the risk follows the to acquire an absolute title by pay- title, is the view taken, in a number ment of the agreed price. The of jurisdictions, that, if the proptransaction was something more erty is accidentally destroyed while than an executory conditional sale. in the hands of the buyer, the seller The seller had done all that he was has no right to recover instalments to do except to receive the purchase of the price thereafter accruing." price; the purchaser had received The other rule is supported by all that he was to receive as the con- Mechem, Sales, vol. 2, p. 634; Bishop sideration of his promises to pay, v. Minderhout, 128 Ala. 162, 52 The inquiry is not whether if he had L.R.A. 395, 86 Am. St. Rep. 134, 29 foreseen the contingency which has So. 11; Cobb v. Tufts, 2 Tex. App. occurred he would have provided Civ. Cas. (Willson) p. 141; Whigagainst it, nor whether he might ham v. Hall, 8 Ga. App. 509, 70 S. È. have made a more prudent contract, 23; Moon v. Wright, 12 Ga. App. but it is whether by the contract he 659, 78 S. E. 141; Randle v. Stone, has made his promise is absolute or 77 Ga. 501; J. M. Arthur & Co. v. conditional. The contract made was Blackman (C. C.) 63 Fed. 536; 5 a lawful one, and, as we have said, Elliott, Contr. § 4986; Benjamin, imposed upon the buyer an absolute Sales (Bennett's 7th ed.) | 328. obligation to pay. To relieve him

So eminent an authority as Profrom this obligation the court must fessor Freeman in a case note in make a new agreement for the par- 138 Am. St. Rep. 903 (loc. cit. 905) ties, instead of enforcing the one said: “We incline to the view taken made, which it cannot do."

by the minority decisions, not be24 R. C. L. supra, discussing the

cause we sometimes doubt the wisquestion, says:

“The authorities dom of majorities, but because we are not in accord as to the liability know that minorities are not always of the buyer for the unpaid part of

wrong. We have only to consider the agreed price where the property the rule of conditional sales generis accidentally destroyed while in ally, in order to arrive at a logical his possession and without his fault. conclusion whether the majority is According to the better view, if the in the right and the minority in the buyer has entered into an uncondi

wrong, or vice versa, on the subject tional promise to pay the price, the under consideration. We find in fact that the property is accidental- Benjamin on Sales (Bennett's 7th ly destroyed while in his possession ed.) 1 328, the following rule: does not relieve him from liability "Where the buyer is by contract for the unpaid and subsequently ac

bound to do anything as a condition, cruing instalments of the price; and this is held true though the contract

either precedent or concurrent, on of sale did not contain an express

which the passing of the property promise on the part of the buyer to depends, the property will not pass pay the price.

The reason

until the condition be fulfilled, even for this view is that the buyer's though the goods may have been acright to the possession before de- tually delivered into the possession fault, and his right to acquire the of the buyer.' It is therefore aptitle by the payment of the agreed parent that what a vendee buys is price, constitute a valid considera- property, not solely the title to or tion for his promise to pay, which is the possession thereof; and if, withnot affected by the destruction of out his fault, the property is de

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