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chased an island in a navigable lake located one half of a mile from the mainland and opposite other land of the grantor, the court in Moore v. Day (1921) 199 App. Div. 76, 191 N. Y. Supp. 731, affirmed in (1923) 235 N. Y. 554, 139 N. E. 732, held that no way by necessity existed over lands of the grantor from the lake shore to a public highway lying on the opposite side of the grantor's lands, where it appears that the plaintiff could reach the mainland at another point by a motor boat at a public dock. The fact that it was more convenient to have a direct approach to the island over the land of the grantor did not make that way a necessary instance to the enjoyment of the island.

However, in Massachusetts, the rule is that a way by necessity exists over the land of the grantor, although the grantee's land borders on the ocean, if the way by water is not available for general purposes to meet the requirement of the uses to which the property would naturally be put. Grammar School v. Jeffrey's Neck Pasture (1899) 174 Mass. 572, 55 N. E. 462. In that case it appeared that a steamer usually ran past the property in the summer, and was commonly used by persons as a means of access to and from the land, but there was testimony that the only way to get to the property with a team was by the way claimed; moreover, it appeared that at the time of the original grant, the property sold was used as a pasture, and that the parties contemplated the use of a way over the grantor's land as a means of access thereto. The court remarked, however, that if it appeared that the way by water could be used

at all seasons of the year, it could be made available for the transportation. to and from the land of all things needed in the use of the land in the ordinary way; the mere fact that this was less convenient and desirable than a way by land would not be sufficient to give a way by necessity over the defendant's property; merely because the way would be more convenient and beneficial is not sufficient.

It has been held that a statute requiring a right of way to be left open across "land surrounding the land of another" does not create a way in favor of land surrounded on three sides by a river marking a boundary between two countries, over land bounding it on the fourth side. Anderson v. Engler (1916) Tex. Civ. App. 184 S. W. 309. The court said that the law by its terms did not apply to a tract of land situated as this, but was intended to protect a small landowner whose land might be inclosed in a pasture or other inclosure, and that, while it was unfortunate that it did not include land bounded as in the case at bar, the court had no authority to extend it to include such.

Also, of interest in connection with the question here under annotation is the decision in Hetfield v. Baum (1852) 35 N. C. (13 Ired. L.) 394, 57 Am. Dec. 563, that a right of way by necessity exists in favor of the state, over land granted to an individual bordering on the seashore, to salvage ships wrecked on the beach, which may be exercised by individuals purchasing at wreck commissioner's sale, although the goods could be carried away by sea or along the beach, where both of such ways would cause great inconvenience. G. S. G.



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 per


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1. Where, pending performance of a conditional sales contract, the prop

(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.]

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executory contracts destruction of property incidence of loss.

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2. Generally, if a specific chattel agreed to be sold under an ordinary executory contract of sale is destroyed before consummation of the sale, the loss will fall upon the vendor.

[See 24 R. C. L. 494, 3 R. C. L. Supp. 1372.]

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3. No title passes under a conditional sales contract and the relation of debtor and creditor is not created. Sale, § 92 conditional effect of inability of one party to comply.

4. The promises of the parties to a conditional sales contract being mutual and interdependent, when one cannot comply, the other is under no 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 & Sharpstein, for appellants:

Under a conditional sale contract, where the absolute and complete ownership and title to the property are vested in the seller, and where before any payments become due on the part of the prospective purchaser, the property is accidentally and without fault destroyed by fire, the loss falls upon the owner.

24 R. C. L. "Sales," § 310; 35 Cyc. "Sales" 344; Hawley v. Kenoyer, 1 Wash. Terr. 609; Hogan v. Kyle, 7 Wash. 595, 38 Am. St. Rep. 910, 35 Pac. 399; McCroskey v. Ladd, 96 Cal. 455, 31 Pac. 558; Winton Motor Carriage Co. v. Broadway Auto Co. 65 Wash. 650, 37 L.R.A.(N.S.) 71, 118 Pac. 817; Peterson v. Chess, 92 Wash. 682, 159 Pac. 894; Norman v. Meeker, 91 Wash. 534, 158 Pac. 78, Ann. Cas. 1917D, 462; Barbour v. Hodge, 99 Wash. 578, 170 Pac. 115; J. M. Arthur & Co. v. Blackman, 63 Fed. 536.


Messrs. Evans & Watson Hamblen & Gilbert, for respondent: Under a conditional sales contract, where title is reserved in the seller as security for the payment of the purchase price, and the subject of the sale is destroyed, the loss falls upon the purchaser, and he is still liable for the purchase price.

Chicago R. Equipment Co. v. Merchants Nat. Bank, 136 U. S. 268, 34 L. ed. 349, 10 Sup. Ct. Rep. 999; 38 A.L.R.-83.

Phenix Ins. Co. v. Hilliard, 59 Fla. 590, 138 Am. St. Rep. 171, 52 So. 799; Lancaster v. Southern Ins. Co. 153 N. C. 285, 138 Am. St. Rep. 665, 69 S. E. 214; Tufts v. Griffin, 107 N. C. 47, 10 L.R.A. 526, 22 Am. St. Rep. 863, 12 S. E. 68; Burnley v. Tufts, 66 Miss. 48, 14 Am. St. Rep. 540, 5 So. 627; Exposition Arcade Corp. v. Lit Bros. 113 Va. 574, 75 S. E. 117, Ann. Cas. 1913D, 335; Phillips v. Hollenberg Music Co. 82 Ark. 9, 99 S. W. 1105; Harley & Willis v. Stanley, 25 Okla. 89, 138 Am. St. Rep. 900, 105 Pac. 188; National Cash Register Co. v. South Bay Club House Asso. 64 Misc. 125, 118 N. Y. Supp. 1044; Jessup v. Fairbanks, M. & Co. 38 Ind. App. 673, 78 N. E. 1050; American Soda Fountain Co. V. Vaughn, 69 N. J. L. 582, 55 Atl. 54; Collerd v. Tully, 78 N. J. Eq. 557, 80 Atl. 491, Ann. Čas. 1912C, 78; O'NeillAdams Co. v. Eklund, 89 Conn. 232, 93 Atl. 524, Ann. Cas. 1918D, 379; Osborn v. South Shore Lumber Co. 91 Wis. 526, 65 N. W. 184; Charles A. Stickney Co. v. Nicholas, 98 Neb. 287, 152 N. W. 554; Williston, Sales, § 304; 35 Cyc. 670; 24 R. C. L. § 788, p. 494; Greenbaum v. Com. 147 Ky. 450, 144 S. W. 45, Ann. Cas. 1913D, 338; Marion Mfg. Co. v. Buchanan, 118 Tenn. 238, 8 L.R.A. (N.S.) 590, 99 S. W. 984, 12 Ann. Cas. 707; Hollenberg Music Co. v. Barron, 100 Ark. 403, 36 L.R.A. (N.S.) 594, 140 S. W. 582, Ann. Cas. 1913C, 659; Whitlock v. Auburn Lum

ber Co. 145 N. C. 120, 12 L.R.A. (N.S.) 1214, 58 S. E. 909; Lavalley v. Ravenna, 2 L.R.A. (N.S.) 97, and note, 6 Ann. Cas. 685, and note; 78 Vt. 152, 112 Am. St. Rep. 898, 62 Atl. 47; Messenger v. Murphy, 33 Wash. 353, 74 Pac. 480; Peterson v. Chess, 92 Wash. 682, 159 Pac. 894.

Fullerton, J., delivered the opinion of the court:

The contract between the parties

to this action was in the form of a

written order made by appellant Jaussaud and accepted by respondent, the Holt Manufacturing Company, for the purchase and sale of a particularly described caterpillar gas combined harvester. The writing recites the sale of the harvester to appellants, and provides that it is to be shipped to them at a certain railroad station in eastern Washington. The appellants agreed in the writing to pay therefor $4,550. One hundred dollars was paid in cash on the execution of the contract, and $300 additional was agreed to be paid on the arrival of the harvester at the station, $2,250 August 1, 1921, and $1,900 August 1, 1922, the deferred payments drawing interest. The contract further provided that "the undersigned (appellants) hereby expressly agree to execute notes for the above deferred payments, and to give as security there⚫ for a first mortgage upon said caterpillar combined harvester herein mentioned on arrival at the station designated above. mortgage shall be in the usual form, and shall require the mortgagor to pay all taxes assessed against said caterpillar combined harvester, together with all other liens; to keep the same insured against loss or .damage by fire from the time of its receipt until the payments are fully made. Insurance policy to read 'loss, if any, payable to Holt Manufacturing Company, Stockton, Cal., mortgagee, as its interest may appear.' Should the undersigned receive said caterpillar combined harvester without executing the notes and mortgage above mentioned, he hereby waives all claims. under said mortgage. And

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it is hereby expressly agreed that the Holt Manufacturing Company does not part with the title to the said caterpillar combined harvester but retains and holds the title and ownership thereof absolutely until said notes and mortgage are executed and delivered."

In due course the harvester was

shipped to the designated station, where it was unloaded and put into possession of appellants, at which time they were requested to sign the already prepared notes and mortgage provided for by the contract, but they did not then sign them, requesting that they be sent to Walla Walla for that purpose. In due course they were so forwarded, and appellants were again requested to sign them, but they refused to do so, because, as they claimed, the mortgage did not comply with the terms. of the original agreement. Meanwhile, appellants had taken the harvester to their farm, set it up, and had done two or three days' work with it, when it was totally destroyed by fire without their fault. The notes and mortgage were never executed. The first deferred payment of $2,250 becoming due and remaining unpaid, respondent, under the terms of the contract, declared all of the deferred payments due and sued therefor, the suit being based upon the contract from which we have quoted.

The chief defense was that at the time the machine was destroyed the title thereto was in respondent, and that the consideration failed because of the destruction of the harvester. When all of the testimony had been taken respondent moved that the case be withdrawn from the jury and for judgment in its favor, and at the same time appellants made a like motion, and by agreement the case was taken from the jury and left to the determination of the court, which entered judgment for respondent, from which appeal is taken.

Appellants in their brief put the issue as follows: "A single question is then presented to this court,

(132 Wash. 667, 233 Pac. 35.)

whether, under conditional sale contract, where the absolute and complete title to the property is vested. in the seller, and where, before any payments become due on the part of the prospective purchaser, the property is accidentally and without fault destroyed by fire, the loss falls upon the owner or the prospective purchaser."

Where there is an ordinary executory contract of sale of a specific chattel, the general rule is that if

Sale-executory contractsdestruction of property-incidence of loss.

the property agreed to be sold is destroyed before the consummation of the sale, the loss will fall upon the vendor because the title is in him; in other words, under such circumstances the loss follows the title. 24 R. C. L. 494. Thus, if two parties enter into a contract, one agreeing to sell and the other to purchase a designated chattel, payment to be made at the time of delivery, and before the agreement is consummated by delivery the article is destroyed, the loss must be borne by the seller, and he has no rights against the purchaser, nor has the latter any rights against him. Hence, it becomes essential to determine whether the same rule applies to a contract of conditional sale. The important parts of the present contract were that appellants agreed to pay a designated sum at certain fixed periods. When the harvester was received by them they were to execute notes evidencing the deferred payments and secure the same by a mortgage on the harvester. Upon that being done the complete title to the machine would vest in them. The title to the harvester was to remain unconditionally in respondent until payment was made, either by giving the notes and mortgage or otherwise. Appellants were to have and actually did have possession of the harvester, but it was plainly the intention of the parties that the title should remain in respondent until it was paid for. The whole transaction might easily stand upon the

written contract, even though the notes and mortgage were never given; in fact, it seems to have been contemplated that that might be the situation, for the contract provides: "Should the undersigned (appellants) receive said caterpillar combined harvester without executing the notes and mortgage above mentioned he hereby waives all claim under said mortgage."

But in that event it further provided the title was not to pass until payment was actually made. The question then is: Upon whom does the loss rest under such a contract?

While the weight of authority seems to be that the purchaser must bear the loss, that rule is generally sustained where a different rule obtains in this state as to the nature and effect of the conditional sales contracts. The following authorities support the doctrine, 24 R. C. L. 494; 6 Am. & Eng. Enc. Law, 455; Burnley v. Tufts, 66 Miss. 48, 14 Am. St. Rep. 540, 5 So. 627; Harley & Willis v. Stanley, 25 Okla. 89, 138 Am. St. Rep. 900, 105 Pac. 188; Marion Mfg. Co. v. Buchanan, 118 Tenn. 238, 8 L.R.A. (N.S.) 590, 99 S. W. 984, 12 Ann. Cas. 707; Hollenberg Music Co. v. Barron, 100 Ark. 403, 36 L.R.A. (N.S.) 594, 140 S. W. 582, Ann. Cas. 1913C, 659; Whitlock v. Auburn Lumber Co. 145 N. C. 120, 12 L.R.A. (N.S.) 1214, 58 S. E. 909; Exposition Arcade Corp. v. Lit Bros. 113 Va. 574, 75 S. E. 117, Ann. Cas. 1913D, 335; Tufts v. Wynne, 45 Mo. App. 42; Lavalley v. Ravenna, 78 Vt. 152, 2 L.R.A. (N.S.) 97, 112 Am. St. Rep. 898, 62 Atl. 47, 6 Ann. Cas. 684.

While the various authorities in support of the view differ somewhat in their reasoning, the general trend is expressed in Burnley v. Tufts, 66 Miss. 48, 14 Am. St. Rep. 540, 5 So. 627, where the court said: "Burnley unconditionally and absolutely promised to pay a certain sum for the property the possession of which he received from Tufts. The fact that the property has been destroyed while in his custody and before the time for the payment of the note

last due, on payment of which only his right to the legal title of the property would have accrued does not relieve him of payment of the price agreed on. He got exactly what he contracted for, viz., the possession of the property and the right to acquire an absolute title by payment of the agreed price. The transaction was something more than an executory conditional sale. The seller had done all that he was to do except to receive the purchase price; the purchaser had received all that he was to receive as the consideration of his promises to pay. The inquiry is not whether if he had foreseen the contingency which has occurred he would have provided against it, nor whether he might have made a more prudent contract, but it is whether by the contract he has made his promise is absolute or conditional. The contract made was a lawful one, and, as we have said, imposed upon the buyer an absolute obligation to pay. To relieve him from this obligation the court must make a new agreement for the parties, instead of enforcing the one made, which it cannot do."

24 R. C. L. supra, discussing the question, says: "The authorities are not in accord as to the liability of the buyer for the unpaid part of the agreed price where the property is accidentally destroyed while in his possession and without his fault. According to the better view, if the buyer has entered into an unconditional promise to pay the price, the fact that the property is accidentally destroyed while in his possession does not relieve him from liability for the unpaid and subsequently accruing instalments of the price; and this is held true though the contract of sale did not contain an express promise on the part of the buyer to The reason pay the price. for this view is that the buyer's right to the possession before default, and his right to acquire the title by the payment of the agreed price, constitute a valid consideration for his promise to pay, which is not affected by the destruction of

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the property, and distinguishes the case from the ordinary executory contracts of sale under which the loss falls on the seller in case the property is destroyed before the title has passed. On the other hand, on the theory that the risk follows the title, is the view taken, in a number of jurisdictions, that, if the property is accidentally destroyed while in the hands of the buyer, the seller has no right to recover instalments of the price thereafter accruing."

The other rule is supported by Mechem, Sales, vol. 2, p. 634; Bishop v. Minderhout, 128 Ala. 162, 52 L.R.A. 395, 86 Am. St. Rep. 134, 29 So. 11; Cobb v. Tufts, 2 Tex. App. Civ. Cas. (Willson) p. 141; Whigham v. Hall, 8 Ga. App. 509, 70 S. E. 23; Moon v. Wright, 12 Ga. App. 659, 78 S. E. 141; Randle v. Stone, 77 Ga. 501; J. M. Arthur & Co. v. Blackman (C. C.) 63 Fed. 536; 5 Elliott, Contr. § 4986; Benjamin, Sales (Bennett's 7th ed.) ¶ 328.

So eminent an authority as Professor Freeman in a case note in 138 Am. St. Rep. 903 (loc. cit. 905) said: "We incline to the view taken by the minority decisions, not because we sometimes doubt the wisdom of majorities, but because we know that minorities are not always wrong. We have only to consider the rule of conditional sales generally, in order to arrive at a logical conclusion whether the majority is in the right and the minority in the wrong, or vice versa, on the subject under consideration. We find in Benjamin on Sales (Bennett's 7th ed.) 328, the following rule: 'Where the buyer is by contract bound to do anything as a condition, either precedent or concurrent, on which the passing of the property depends, the property will not pass until the condition be fulfilled, even though the goods may have been actually delivered into the possession of the buyer.' It is therefore apparent that what a vendee buys is property, not solely the title to or the possession thereof; and if, without his fault, the property is de

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