Appeal from Second Judicial District Court, Washoe County; R. C. Stoddard, Judge.
Mack & Green (A. F. Lasher, of Counsel), for Appellant.
Cheney, Downer, Price & Hawkins, for Respondent.
By the Court, Ducker, J.:
The appellant, who was plaintiff in the court below, brought his action against the Humphrey Supply Company to recover the unpaid purchase price of 296 5/6 tons of hay. The complaint alleges that at the time of the sale the hay was in a deliverable condition, and was
agreed to be delivered and was delivered in the stack at and where the same was then stacked, and nothing remained to be done with reference thereto to pass the title to defendant, and it was the intention of plaintiff and defendant to pass the title to the hay by agreement, and that the title did thereby pass from plaintiff to defendant. It is also alleged that no part of the purchase price of said hay has been paid except the sum of $500, and the remainder of the purchase price of the hay, the sum of $2,468.33 is due, owing, and unpaid. All of these allegations are denied in the answer except the payment of the sum of $500, and in the counter-claim the return of this sum is demanded.
The answer also alleged the following agreement in writing.
Humphrey Supply Company.
Bought of Peter Cassinelli the following. I have sold all of my hay to Humphrey Supply Co., except about thirty tons at Ten Dollars per ton to be measured by same rule as sold to Nevada Packing one year ago, to be fed by P. Cassinelli free or we can feed ourselves, Cassinelli to furnish team and wagons.
The above hay to be delivered at once when measured and I hereby acknowledge receipt of $500.
His mark X Peter Cassinelli,
On the issues thus made the trial court found that on December 2, 1916, all the hay referred to in this action was consumed by fire and destroyed; that at the time the hay was so burned and destroyed all of said hay was owned and in the possession of the plaintiff herein; that the hay in the stacks was not in a deliverable condition at the time it was burned, and had not been delivered to, or accepted by, the defendant; that the terms of said written agreement had not been complied with
at the time the hay was burned; that the title to the hay or any of the hay referred to did not pass from the plaintiff to the defendant.
From the judgment rendered in favor of defendant and an order denying a motion for a new trial this appeal is taken.
A number of errors are assigned by appellant, and the principal one is that the court erred in finding that the hay in the stacks was not in a deliverable condition at the time it was sold, and had not been accepted by the defendant, and that the title had not passed from the plaintiff to defendant. It is insisted that such finding is not sustained by the evidence. On the other hand, respondent contends that the facts found are not reviewable here because they were found on a conflict of the evidence; and the only question we can consider in reference thereto is whether the conclusion that the title to the hay did not pass is a correct conclusion of law to be drawn from the facts found by the trial court.
1, 2. If there is a substantial conflict of the material evidence upon which the finding rests, this contention may be admitted. The question of whether the title passed depends entirely upon the intention of the parties, if the goods were specific and ascertained goods.
If the intention is to be determined mainly from a construction of written instruments, the legal effect of which is for the court, and uncontradicted evidence, it is one for the courts. 24 R. C. L. sec. 275.
The question is essentially one of fact; and though if the whole contract of the parties is reduced to writing this question is determined by the court, as also if the facts are so clear as to justify but one conclusion. Williston on Sales, sec. 262.
If the question is one for the court, either by reason of the construction of a written instrument or undisputed facts, this court is not bound by the findings or conclusions of the lower court, but may draw its own conclusion as to the legal effect of the written instrument or other evidence. 3 Cyc. p. 347.
The inquiry arises, therefore, as to how far the finding
of the court is based upon conflicting evidence, and necessitates a ...