Legal Opinion

Kein v. Tupper

New York Court of Appeals

Decided May 6, 1873PublishedCited by 1 opinion

Appeal from order of the General Term of the Superior Court of the city of New York, reversing a judgment in favor of plaintiff, entered upon a verdict. This action was brought to recover the purchase price of seventy bales of cotton alleged to have been sold by plaintiffs to defendants.

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Appeal from order of the General Term of the Superior Court of the city of New York, reversing a judgment in favor of plaintiff, entered upon a verdict. This action was brought to recover the purchase price of seventy bales of cotton alleged to have been sold by plaintiffs to defendants. On the 8d July, 1868, plaintiffs contracted to sell and defendants to purchase 119 bales of A. cotton, described by marks, at thirty-one and a quarter cents per pound, payable in cash on delivery. The sale was negotiated by cotton brokers, who acted for both parties, bought and sold notes were delivered. The…

1Opinion of the Court

Chuboh, Ch. J.

It is conceded that the loss occasioned by the fire must fall upon the party who, at the time, had the legal title to the cotton; and such is the well settled rule. (8 N. Y., 291.)

The contract of sale and purchase did not pass the title. When anything remains to be done by the seller to ascertain the identity, quantity or quality of the property, no title passes. (5 Den., 379; 25 N. Y., 525, and cases there cited.)

Assuming that this was a sale of a quantity of specific cotton, which I think we may do, and which is the most favorable view for the plaintiffs, yet, as the cotton…

2Cases cited5 opinions

  1. Dexter v. . NortonNew York Court of Appeals · 1871
  2. Olyphant v. BakerNew York Supreme Court · 1848
  3. Baker v. . HigginsNew York Court of Appeals · 1860
  4. Joyce v. . AdamsNew York Court of Appeals · 1853
  5. Olyphant v. McNairNew York Supreme Court · 1864

3Cited by1 opinion

  1. Ansonia Brass & Copper Co. v. ConnerNew York Court of Common Pleas · 1883

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