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Wheatley v. H. & H. Poultry Co.

Superior Court of Delaware, Sussex County

September 12, 1950

WHEATLEY
v.
H. & H. POULTRY CO.

Page 703

Caleb M. Wright, of Georgetown, for plaintiff.

James M. Tunnell, Jr., of the firm of Tunnell & Tunnell, Georgetown, for defendant.

CAREY, Judge.

The plaintiff contends (a) that title to all the broilers passed to defendant immediately upon the making of the contract and that the risk of loss was thereafter upon the defendant; and (b) that, even though it be found that title had not passed, the death of the broilers was due to negligence of defendant's servants, wherefore defendant is liable in any event.

The question presented as to just when property, or title, passes in these transactions between growers and buyers seems never to have been decided in any reported Delaware case. It is an important one, however, to the people of this State because of the vast number of such transactions here. This may be seen from the fact that in 1949, Delaware, tiny in area and small in population, produced fifty percent more broilers than any other single state. In a business of this magnitude, it is only natural that certain usages of trade

Page 704

The Uniform Sales Act, Article 2 of Ch. 173, Revised Code of Delaware 1935, demands recognition of usages of trade in determining the question here presented. Code Section 5997 is as follows:

[45 Del. 505] '5997. Sec. 47. Property in Specific Goods Passes When Parties so Intend:--(1) Where there is a contract to sell specific or ascertained goods, the property in them is transferred to the buyer at such time as the parties to the contract intend it to be transferred.

'(2) For the purpose of ascertaining the intention of the parties, regard shall be had to the terms of the contract, the conduct of the parties, usages of trade and the circumstances of the case.'

Code Section 5998 reads in part as follows:

'5998. Sec. 48. Rules for Ascertaining Intention:--Unless a different intention appears, the following are rules for ascertaining the intention of the parties as to the time at which the property in goods is to pass to the buyer:

'Rule 1. Where there is an unconditional contract to sell specific goods, in a deliverable state, the property in the goods passes to the buyer when the contract is made and it is immaterial whether the time of payment, or the time of delivery, or both, be postponed.'

Considerable evidence, most of which was uncontradicted, was produced at the trial concerning usages of trade in the broiler raising industry. What is hereafter said includes my findings in those respects where some conflict of testimony exists. In a typical example, the original agreement is no more explicit than the one made here. That is, the only points usually discussed and expressly agreed upon are the price per pound and the time when delivery is to take place. The price is based on 'live weight' which is apparently treated as synonymous with the term 'marketable'. In every flock there are a small number of unmarketable birds called 'knots' or 'runts'. These either are not taken by the buyer when he removes the flock, or else are made the subject of special agreement after the marketable chickens have been [45 Del. 506] removed. Removal sometimes commences as much as two weeks or more after the date of the contract and often requires several days time to complete, depending on the number in the flock.

Delivery is made at the grower's houses. The work of catching, weighing and loading is done by the employees of the buyer in the presence of the seller. Coops are owned by the buyer. While the actual catching, weighing and loading is going on, the seller stays out of the houses. Apparently this is for the reason that a number of chickens are frequently smothered or otherwise killed as a result of and during the catching work and it is customary for the buyer to pay for those so killed. It is not customary, however, for the buyer to pay for any other broilers which die after the making of the contract and before removal has been completed. After the agreement has been made, the ...


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