24 Kan. 90 | Kan. | 1880
The opinion of the court was delivered by
This was an action of replevin for corn, and the question is, whether defendant in error had acquired title to said corn by an agreement with one T. W. Bailey, the former owner, or was it still the property of said T. W. Bailey, and subject to levy on an execution against him ? The case was tried by the court, without a jury. Special findings of fact were made in favor of the plaintiff, defendant in error. The testimony has not been preserved, and the case stands before us on the pleadings, findings, and judgment. The findings of fact and conclusions of law are as follows:
“The court finds as matters of fact, that on or about the 27th day of November, 1876, Thomas W. Bailey was indebted in a judgment of about one hundred dollars to Kennedy & Amsbury, and the constable, Scott Thomas, had-levied an execution in said judgment, upon corn standing in the field on the premises of said Thomas W. Bailey, being a part of the same corn in controversy in this action; that on the said 27th day of November, 1876, and for a long time previous, said Thomas W. Bailey was indebted to this plaintiff, J. S. Long, in the sum of about five hundred dollars, which indebtedness was secured by a mortgage given by said T. W. Bailey to said Long, upon a certain pair of mules, purchased by said Bailey from James J. Brimm, and upon other personal property; that at said date, said T. W. Bailey
“The court further finds that the proof showed that such disposition and transfer were supposed and estimated at the time to take all the corn in the field, except what Bailey would want for his own use; that said Babcock being present, as the agent of McCormick, as has been stated, had knowledge of all the above agreement, and did not dissent nor notify any of the parties making said agreement that he objected thereto; and that he was as.ked to put the above agreement in writing at the time by the said parties, but stated to the other parties that it was unnecessary — that the contract not in writing was as good as though it was put in writing, and no writing was executed. This was stated in reply to a question by the other parties put to him.
“The court finds further, that the corn which this plaintiff was to have was not separated from the other in the field which Brimm was to have, or the surplus which would remain to said T. W. Bailey.
“ And as conclusions of law, the court finds that the property involved in this action was, at the commencement thereof, the property of this plaintiff, J. S. Long, and that he was entitled to the immediate possession of said property.”
Do these findings of fact sustain the conclusion of the court, that the title had passed from Bailey to Long ? It may be remarked in passing, that this is the controversy referred to in the case of Brimm v. Long, 22 Kas. 153, and one which the plaintiff in error has been very slow in bringing up for review. Perhaps the relationship of the two cases has caused the delay in this.
Piad the title to the corn levied on passed from T. W.
If the findings had shown that it was the understanding and intent of the parties that title should pass at once, we should be relieved of difficulty; but they certainly, in terms, assert no such thing. True, the conclusion to which the district court came was, that Long was the owner, but that is not a finding of fact, but a conclusion derived from the facts as previously stated. In other words, the district court affirmed, not that the testimony disclosed an intent to consummate the sale' and immediately pass the title, but that the facts as found, show such a passage of title. With this conclusion we cannot concur. It seems to us that the facts
Still again, Bailey had sixty acres of corn. The levy was upon only thirty. How did it happen that this thirty acres belonged to Long instead of the other thirty? Had Brimm appropriated the other thirty, or was it what was left for Bailey? Had Brimm gathered his corn, or was he owner of five hundred bushels in this that was replevied? The findings show that no separation was made in the first place, and do not show that any had been made since. How then was it that Long owned this that was levied on? But it may be said that Brimm and Long were the joint owners of all, and
Still further, the findings show that some of the corn contracted for had been delivered to Long, but how much is not shown. He was to receive $250 worth. If -he had already received $100 worth, how does he still own, and how can he maintain replevin for, $240 worth?
We have made these various suggestions in no captious spirit, but because they serve to show that the facts do not indicate a present passage of title, but the reverse, and only an agreement to sell and deliver an unascertained quantity of corn. They suggest very forcibly the second of the rules laid down by Mr. Justice Blackburn, (Benjamin on Sales, § 319:) “Where anything remains to be done to the goods for the purpose of ascertaining the price, as by weighing, measuring or testing the goods, where the price is to depend'on'the quantity or quality of the goods, the performance of these things also shall be a condition precedent to the transfer of the .property, although the individual goods be ascertained, and they are in the state in which they ought to be accepted.” Here, the price was unsettled, to depend on the market at the time of delivery, and the amount to be delivered was to vary inversely as the price. How, then,-can it be said that the title had passed?
We think, upon the findings, the conclusion of the district court was erroneous, and that the judgment must be reversed, and the case remanded with instructions to render judgment in favor of plaintiff in error, defendant below, for the amount of the execution in his hands.